SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
ANDREW CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of
incorporation or organization)
3357 36-2092797
(Primary Standard Industrial (I.R.S. Employer
Classification Code Number) Identification No.)
10500 W. 153RD STREET, ORLAND PARK, ILLINOIS 60462 (708) 349-3300
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
CHARLES R. NICHOLAS
EXECUTIVE VICE PRESIDENT;
CHIEF FINANCIAL OFFICER
10500 WEST 153RD STREET
ORLAND PARK, ILLINOIS 60462
(708) 349-3300
(Name, address, including zip code, and telephone, including area code,
of agent for service)
WITH COPIES TO:
KAREN S. LYONS TIMOTHY R. M. BRYANT
GARDNER, CARTON & DOUGLAS MCDERMOTT, WILL & EMERY
321 NORTH CLARK STREET, 227 WEST MONROE STREET
SUITE 3300 CHICAGO, ILLINOIS 60606
CHICAGO, ILLINOIS 60610 (312) 984-2069
(312) 245-8485
Approximate date of commencement of proposed sale of the securities to
the public: Upon the Effective Time of the Merger of The Antenna Company with
and into Andrew Corporation as set forth in Article I of the Agreement and Plan
of Merger included as Appendix A to the Proxy Statement/Prospectus forming a
part of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, please check the following box.
----
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed
Maximum
Title of Each Class Amount Maximum Aggregate Amount of
of Securities to be Offering Price Offering Registration
Being Registered Registered Per Unit Price Fee
- ------------------- ---------- -------------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value. 1,250,000 shares N/A $6,959,840<F1> $2,400<F1>
<FN>
<F1>
There is no market for the 9,000 shares of The Antenna Company which are to
be received by the Registrant in the Merger. Therefore, pursuant to Rule
457(f)(2) the fee is calculated based on the aggregate book value of such shares
which was $6,959,840 as of December 31, 1995.
</FN>
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
<TABLE>
ANDREW CORPORATION
Cross-Reference Sheet Showing Location in Prospectus of Information Required by
Items of Form S-4.
<CAPTION>
ITEM NUMBER AND CAPTION LOCATION OR CAPTION IN PROSPECTUS
<S> <C>
A. Information about the Transaction
1. Forepart of Registration Statement
and Outside Front Cover Page Facing page of Registration Statement; this cross-reference sheet;
of Prospectus............................. Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages "Documents Incorporated by Reference;"
of Prospectus............................. "Available Information;" "Table of Contents"
3. Risk Factors, Ratio of Earnings to Fixed
Charges and Other Information............. Summary
4. Terms of the Transaction.................. Cover Page; "The Merger;" "Information Concerning Andrew;"
"Information Concerning Antenna;" "Rights of Andrew and
Antenna Stockholders"
5. Pro Forma Financial Information........... "Pro. Forma Combined Condensed Financial Information
6. Material Contacts With the Company Being
Acquired.................................. "The Merger"
7. Additional Information Required for
Reoffering by Persons and Parties Deemed
To Be Underwriters........................ <F2>
8. Interests of Named Experts and Counsel.... "Legal Matters;" "Experts"
9. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities............................... <F2>
B. Information about the Registrant
10. Information With Respect to S-3
Registrants............................... "Information Concerning Andrew"
11. Incorporation of Certain Information
by Reference.............................. "Documents Incorporated by Reference"
12. Information With Respect to S-2 or
S-3 Registrants........................... <F2>
13. Incorporation of Certain Information by
Reference................................. <F2>
14. Information With Respect to Registrants
Other Than S-2 or S-3 Registrants......... <F2>
C. Information about the Company Being Acquired
15. Information With Respect to S-3 Companies. <F2>
16. Information With Respect to S-2 or S-3
Companies................................. <F2>
17. Information With Respect to Companies
Other Than S-2 or S-3 Companies........... "Summary -- Selected Financial Information;" "Information
Concerning Antenna;" " -- Management's Discussion and
Analysis of Financial Condition and Results of
Operations;" "Antenna's Financial Statements"
D. Voting and Management Information
18. Information if Proxies, Consents or
Authorizations Are To Be Solicited........ Cover Page; "Summary;" "The Merger -- Dissenters' Rights,"
"-- The Special Meeting of the Antenna Shareholders,"
"-- Interests of Certain Persons in the Merger;"
"Information Concerning Andrew;" "Information Concerning
Antenna"
19. Information if Proxies, Consents or
Authorizations Are Not To Be Solicited or
in an Exchange Offer...................... <F2>
<FN>
<F2>
Information in response to this Item is omitted from the Prospectus as the Item
is inapplicable or the answer thereto is in the negative.
</FN>
</TABLE>
<PAGE>
THE ANTENNA COMPANY
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
_________________, 1996
A Special Meeting of the Shareholders of The Antenna Company
("Antenna") will be held on ____________, 1996 at 9:00 a.m., Central Standard
Time, at Antenna's offices, 1100 Maplewood Drive, Itasca, Illinois to consider
and act upon:
(1) A proposal to approve and adopt an Agreement and Plan of Merger
dated January 25, 1996 between Andrew Corporation, a Delaware
corporation ("Andrew"), and Antenna, pursuant to which Antenna will be
merged with and into Andrew, as more fully described in the attached
Proxy Statement/Prospectus; and
(2) Such other business as may properly come before the meeting or any
adjournments thereof.
The Board of Directors has fixed the close of business on February 9,
1996 as the record date for the determination of shareholders entitled to notice
of, and to vote at, the meeting. Objecting shareholders who perfect and exercise
their dissenters' rights in accordance with the procedural requirements of the
Illinois Business Corporation Act of 1983, as amended, will be entitled to
receive payment of the "fair value" of their shares in cash if the proposed
merger is consummated. See "The Merger -- Dissenters' Rights" and Appendix B to
the Proxy Statement/Prospectus, which Appendix is deemed to be a part of this
notice.
________________, 1996
By order of the Board of Directors
Daulat P. Engineer, Secretary
PLEASE EXECUTE AND RETURN PROMPTLY THE ENCLOSED PROXY WHETHER OR NOT YOU EXPECT
TO ATTEND THE SPECIAL MEETING.
<PAGE>
THE ANTENNA COMPANY
1100 MAPLEWOOD DRIVE
ITASCA, ILLINOIS 60143
(708) 250-9900
-------------------------
PROXY STATEMENT
-------------------------
ANDREW CORPORATION
10500 WEST 153RD STREET
ORLAND PARK, ILLINOIS 60462
(708) 349-3300
---------------------------
PROSPECTUS
---------------------------
This Proxy Statement/Prospectus and the accompanying notice, form of proxy and
other documents are being sent to shareholders of The Antenna Company, an
Illinois corporation ("Antenna"), on or about __________, 1996 in connection
with the solicitation by Antenna's Board of Directors of proxies to be used at a
Special Meeting of Shareholders of Antenna (the "Meeting"), and at any
adjournment thereof. The Meeting will be held at the offices of Antenna, 1100
Maplewood Drive, Itasca, Illinois on _________, 1996 at 9:00 a.m. Central
Standard Time.
The purpose of the Meeting is for the shareholders of Antenna to consider and
vote on the proposed merger of Antenna with and into Andrew (the "Merger"),
pursuant to the Agreement and Plan of Merger between Andrew and Antenna dated
January 25, 1996 (the "Merger Agreement"). See "The Merger." At the Effective
Time (as defined herein) of the Merger, all of the outstanding shares of Antenna
common stock, $0.10 par value per share, will be converted into the right to
receive a number of whole shares of Andrew common stock, $0.01 par value per
share (the "Andrew Common Stock"), plus cash in lieu of fractional shares.
Pursuant to the Merger Agreement, Andrew may be required to issue up to
1,250,000 shares of Andrew Common Stock based upon the Exchange Ratio (as
defined herein). See "The Merger."
Any person who executes and returns the enclosed proxy may revoke it at any time
prior to the vote at the Meeting by notice to the Secretary of Antenna received
prior to the Meeting, by execution of a subsequently dated proxy, or by
attending the Meeting and voting in person. The persons named in the enclosed
proxy will vote as directed by the shareholder executing the proxy with respect
to the Merger Agreement or, in the absence of direction, in favor of approval
and adoption of the Merger Agreement. Antenna is not aware of any matters to
come before the Meeting other than consideration of the Merger. However, if any
other matters properly come before the Meeting, the persons named on the
enclosed form of proxy will vote the proxy in accordance with their best
judgment on such matters.
The accompanying proxy is being solicited by the Board of Directors of Antenna,
which will bear the costs of soliciting proxies for the Meeting, estimated to be
approximately $5,000, except that Andrew will bear the costs of preparing this
Proxy Statement/Prospectus. In addition to the use of the mails, proxies may be
solicited by personal interview, telephone, facsimile, telex or telegram by
directors, officers and employees of Antenna, who will receive no additional
compensation for these services.
THE BOARD OF DIRECTORS OF ANTENNA UNANIMOUSLY HAS APPROVED THE MERGER AND
RECOMMENDS THAT SHAREHOLDERS VOTE FOR ITS ADOPTION.
Andrew has filed a registration statement with the Securities and Exchange
Commission relating to the Andrew Common Stock to be issued in connection with
the Merger. This Proxy Statement also constitutes the Prospectus of Andrew
filed as part of the registration statement. Any reference to this document as
a Proxy Statement shall also constitute a reference to it as such Prospectus.
The information herein with respect to Andrew and Antenna has been supplied by
each corporation. The information contained herein with respect to the Merger
is qualified by reference to the Merger Agreement, which is incorporated herein
by reference.
The Andrew Common Stock is listed and traded on the Nasdaq National Market
("NNM") under the symbol "ANDW."
THE SECURITIES TO WHICH THIS PROXY STATEMENT/PROSPECTUS RELATES
HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
----------------------------
The date of this Proxy Statement/Prospectus is February __, 1996.
<PAGE>
AVAILABLE INFORMATION
Andrew is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission (Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549) and at the following regional offices: New York
Regional Office, Seven World Trade Center, New York, New York 10048; and Chicago
Regional Office, Northwestern Atrium Center, 500 West Madison Street, Chicago,
Illinois 60661. Copies of such materials can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. Andrew's Common Stock is traded on the Nasdaq
National Market. Reports, proxy statements and other information regarding
Andrew may also be inspected at the offices of the NASD, Reports Section, 1735 K
Street, N.W., Washington, D.C. 20006.
Andrew has filed with the Commission a Registration Statement under the
Securities Act of 1933, as amended (the "Securities Act"), covering the shares
of Andrew's Common Stock referred to herein. This Proxy Statement/Prospectus
does not contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. For further information, reference is made to the
Registration Statement.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by Andrew with the Commission (File No.
0-9514) are incorporated in this Proxy Statement/Prospectus by reference and
made a part hereof:
(i) Annual Report on Form 10-K for the fiscal year ended
September 30, 1995;
(ii) Notice of Annual Meeting of Stockholders and Proxy Statement
dated December 29, 1995; and
(iii) Quarterly Report on Form 10-Q for the quarter ended
December 31, 1995.
All documents subsequently filed by Andrew pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Proxy
Statement/Prospectus and prior to the Merger shall be deemed to be incorporated
in this Proxy Statement/Prospectus by reference and to be a part hereof from the
respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference in this Proxy
Statement/Prospectus shall be deemed to be modified or superseded for purposes
of this Proxy Statement/Prospectus to the extent that a statement contained in
this Proxy Statement/Prospectus or in any other subsequently filed document
which also is or is deemed to be incorporated by reference in this Proxy
Statement/Prospectus modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Proxy Statement/Prospectus. All information
appearing in this Proxy Statement/Prospectus is qualified in its entirety by the
information and financial statements (including the notes thereto) appearing in
the documents incorporated herein by reference.
AS DESCRIBED ABOVE, THIS PROXY STATEMENT/PROSPECTUS INCORPORATES DOCUMENTS BY
REFERENCE WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS
(OTHER THAN EXHIBITS THERETO) ARE AVAILABLE WITHOUT CHARGE UPON REQUEST DIRECTED
TO MR. JAMES F. PETELLE, SECRETARY, ANDREW CORPORATION, 10500 WEST 153RD STREET,
ORLAND PARK, ILLINOIS 60462; TELEPHONE (708) 349-3300. IN ORDER TO ENSURE TIMELY
DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BEFORE _____________,
1996.
<PAGE>
TABLE OF CONTENTS
PAGE
SUMMARY.......................................................................1
SUMMARY SELECTED FINANCIAL INFORMATION AND PER SHARE DATA.....................4
THE SPECIAL MEETING OF THE ANTENNA SHAREHOLDERS...............................6
Date, Time and Place....................................................6
Purpose of the Meeting..................................................6
Record Date.............................................................6
Required Vote...........................................................6
Proxies.................................................................6
THE MERGER....................................................................7
Merger Consideration....................................................7
Background and Reasons for the Merger...................................8
Effective Time of the Merger............................................9
Conversion of Shares in the Merger......................................9
Exchange of Certificates...............................................10
Representations and Warranties.........................................10
Conduct of Business Pending Consummation of the Merger.................11
Conditions to Closing..................................................12
Termination and Termination Fee........................................13
No Solicitations.......................................................14
Interests of Certain Persons in the Merger.............................15
Registration and Listing...............................................15
Certain Federal Income Tax Consequences................................15
Accounting Treatment...................................................17
Regulatory Approvals...................................................17
Dissenters' Rights.....................................................18
Resale of Andrew Common Stock Issued in the Merger; Affiliates.........19
PRO FORMA COMBINED CONDENSED FINANCIAL STATEMENTS
(UNAUDITED)............................................................20
INFORMATION CONCERNING ANDREW................................................28
Business...............................................................28
INFORMATION CONCERNING ANTENNA...............................................28
Business...............................................................28
Market for Shares and Dividends........................................30
Security Ownership.....................................................31
Management's Discussion and Analysis of Financial Condition and
Results of Operations...............................................32
RIGHTS OF ANDREW AND ANTENNA STOCKHOLDERS....................................34
Description of Andrew Common Stock.....................................34
Description of Antenna Common Stock....................................35
Comparison of Rights of Andrew Stockholders and Antenna Shareholders...35
LEGAL MATTERS................................................................39
EXPERTS......................................................................39
Andrew.................................................................39
Antenna................................................................39
INDEX TO ANTENNA FINANCIAL STATEMENTS........................................40
APPENDIX A Agreement and Plan of Merger......................................41
APPENDIX B Illinois Business Corporation Act -- Sections 11.65 and 11.70....42
<PAGE>
SUMMARY
The following summary is not intended to be complete and is qualified in its
entirety by more detailed information appearing elsewhere in this Proxy
Statement/Prospectus, including the appendices hereto, or in the documents
incorporated herein by reference. Unless otherwise indicated, all references in
this Proxy Statement/Prospectus to Andrew include Andrew Corporation and its
subsidiaries, and all share and per share data give effect to 3-for-2 stock
splits effected by Andrew in March 1995 and March 1994 and a 2-for-1 stock split
effected by Andrew in March 1993. No effect has been given, however, to the
3-for-2 stock split declared by Andrew February 7, 1996, payable in March 1996.
This Proxy Statement/Prospectus, including the appendices and the documents
incorporated by reference, should be read carefully in their entirety.
ANDREW CORPORATION
Andrew Corporation, a Delaware corporation ("Andrew") is an international
supplier of communications equipment systems and services. Andrew's principal
executive office is located at 10500 West 153rd Street, Orland Park, Illinois
60462 and its telephone number is (708) 349-3300. See "Information Concerning
Andrew."
THE ANTENNA COMPANY
The Antenna Company, an Illinois corporation ("Antenna") designs, assembles,
tests, packages and markets antenna products and cellular phone accessories
which are sold primarily through retail distribution channels. Antenna's
principal executive office is located at 1100 Maplewood Drive, Itasca, Illinois
60143 and its telephone number is (708) 250-9900. See "Information Concerning
Antenna."
DATE, TIME AND PLACE OF ANTENNA SHAREHOLDERS' MEETING
A special meeting of Antenna's shareholders (the "Meeting") to consider and vote
upon a proposal to authorize the transactions contemplated by an Agreement and
Plan of Merger dated January 25, 1996 (the "Merger Agreement") between Andrew
and Antenna will be held on ________, 1996 at the offices of Antenna located at
1100 Maplewood Drive, Itasca, Illinois, 60143 at 9:00 a.m., Central Standard
Time. See "The Special Meeting of the Antenna Shareholders." Pursuant to the
Merger Agreement, Antenna will be merged with and into Andrew (the "Merger") and
Andrew will be the surviving corporation.
RECORD DATE
Only holders of record of Antenna common stock, par value $0.10 per share (the
"Antenna Common Stock") at the close of business on February 9, 1996 (the
"Record Date") are entitled to vote at the Meeting. At the close of business on
the Record Date, there were 9,000 shares of Antenna Common Stock outstanding,
each of which is entitled to one vote at the Meeting. See "The Special Meeting
of the Antenna Shareholders -- Record Date."
REQUIRED VOTE
The representation in person or by proxy of at least a majority of the issued
and outstanding shares of Antenna Common Stock is necessary to establish a
quorum for the transaction of business at the Meeting. According to the Illinois
Business Corporation Act of 1983, as amended (the "IBCA"), and Antenna's
Articles of Incorporation, the affirmative vote of two-thirds of the outstanding
shares of the Antenna Common Stock is necessary to approve the Merger Agreement.
See "The Special Meeting of the Antenna Shareholders -- Required Vote."
Directors and executive officers of Antenna and their affiliates beneficially
own 69.3% of the issued and outstanding shares of Antenna Common Stock. See
"Information Concerning Antenna -- Security Ownership."
The consent of the stockholders of Andrew is not required to approve the Merger
or the Merger Agreement and will not be sought.
PROXIES
All shares of Antenna Common Stock represented by properly executed and
unrevoked proxies which are received prior to or at the Meeting will be voted in
accordance with the instructions indicated in such proxies. Properly executed
proxies which do not contain voting instructions will be voted FOR approval of
the Merger Agreement. See "The Special Meeting of the Antenna Shareholders --
Proxies."
THE MERGER
Upon the terms and subject to the conditions contained in the Merger Agreement,
at the effective time of the Merger (the "Effective Time"), (i) Antenna will be
merged with and into Andrew and Andrew will continue in existence as the
surviving corporation, (ii) each outstanding share of Antenna Common Stock
(other than shares to be cancelled pursuant to clause (iii) below) will be
converted into the right to receive that number of shares of Andrew common
stock, par value $0.01 per share (the "Andrew Common Stock"), equal to the
Exchange Ratio (as defined below), and (iii) each share of Antenna Common Stock
owned by Antenna as treasury shares or owned directly or indirectly by Antenna,
Andrew, or any of their respective wholly owned subsidiaries will be cancelled
and will cease to exist, and no stock of Andrew or other consideration will be
delivered in exchange therefor. See "The Merger."
Pursuant to the Merger Agreement, the Exchange Ratio will be equal to the
quotient of (x) $52,500,000 divided by the number of shares of Antenna Common
Stock outstanding immediately prior to the Effective Time, divided by (y) the
greater of $42.00, or the average of the high and low per share sale price of
the Andrew Common Stock, as reported on the Nasdaq National Market (the "NNM")
for each of the ten trading days immediately preceding and including the second
trading day prior to the closing of the Merger (the "Closing"), as reported in
The Wall Street Journal (the "Andrew Stock Value"). If the Andrew Stock Value is
less than $38.00, then Antenna may terminate the Merger Agreement. See "The
Merger -- Termination and Termination Fee." The closing price per share of the
Andrew Common Stock on __________, 1996 was $____.
Andrew will issue only whole shares of Andrew Common Stock in connection with
the Merger. Each holder of Antenna Common Stock who otherwise would be entitled
to receive a fractional share of Andrew Common Stock will instead receive an
amount of cash (without interest) determined by multiplying the greater of
$42.00 and the Andrew Stock Value by the fractional share interest to which such
holder would otherwise be entitled.
APPROVAL OF THE MERGER
The Boards of Directors of Andrew and Antenna have unanimously approved the
consummation of the Merger and the transactions contemplated by the Merger
Agreement. See "The Merger -- Background of the Merger."
EFFECTIVE TIME OF THE MERGER
The Merger will become effective upon the filing of the required merger
documents with the Secretaries of State of Illinois and Delaware, which is
expected to be not later than five business days after the satisfaction or
waiver of the conditions to the Merger.
CONDITIONS TO THE MERGER; TERMINATION
The consummation of the Merger is conditioned upon the fulfillment of certain
conditions set forth in the Merger Agreement. The Merger Agreement may be
terminated by mutual consent of the Boards of Directors of Antenna and Andrew,
by either Andrew or Antenna if certain conditions have not been satisfied, and
in certain other situations. If Antenna terminates the Merger Agreement under
certain circumstances, it will be required to make certain payments to Andrew
and may be required to make certain additional payments if it consummates or
agrees to consummate certain types of transactions within the fifteen-month
period following such termination. See "The Merger -- Conditions to Closing,"
and "-- Termination and Termination Fee."
OTHER NEGOTIATIONS
The Merger Agreement places certain restrictions on the extent to which Antenna
and its subsidiaries can negotiate with prospective purchasers other than
Andrew. See "The Merger -- No Solicitations."
FEDERAL INCOME TAX CONSEQUENCES
The Merger is intended to qualify as a tax-free reorganization within the
meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended.
Tax-free treatment of the Merger for Andrew and the Antenna shareholders will
depend in part on circumstances occurring after the Merger. For a discussion of
the possible federal income tax consequences of the Merger, see "The Merger --
Certain Federal Income Tax Consequences."
REGULATORY APPROVALS
Certain information regarding the Merger must be provided to the Federal Trade
Commission and the Antitrust Division of the Department of Justice, and certain
waiting period requirements must be satisfied before the Merger can be
consummated. See "The Merger -- Regulatory Approvals." On January 29, 1996,
Antenna and Andrew filed the requisite forms and documents with these entities
and the requisite waiting period is expected to expire on February 28, 1996.
RESALE RESTRICTIONS
All shares of Andrew Common Stock received by Antenna shareholders in connection
with the Merger will be fully transferable, except that shares of Andrew Common
Stock received by persons who are deemed to be "affiliates" (as that term is
defined for purposes of Rule 145 under the Securities Act of 1933, as amended,
or otherwise pursuant to Securities and Exchange Commission accounting releases
with respect to "pooling of interests" accounting) of Andrew at the Effective
Time may be resold by such persons only in certain circumstances. See "The
Merger -- Resale of Andrew Common Stock Issued in the Merger; Affiliates."
DISSENTERS' RIGHTS
Under the IBCA, Antenna shareholders will be entitled to dissent from the Merger
and, if the Merger is consummated, to obtain cash in an amount equal to the fair
value of their Antenna Common Stock which may be more or less than the amount to
be received pursuant to the Merger Agreement. Specific procedures are required
to be followed in order to exercise such rights. See "The Merger -- Dissenters'
Rights." The Merger Agreement provides that if any holders of Antenna Common
Stock validly exercise their dissenters' rights, Andrew may refuse to consummate
the Merger and terminate the Merger Agreement.
<PAGE>
SUMMARY SELECTED FINANCIAL INFORMATION
AND PER SHARE DATA
SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION
The following selected historical consolidated financial data of Andrew as of
and for the years ended September 30, 1991 through 1995 have been derived from
audited consolidated financial statements, including those incorporated by
reference. Andrew data for the three months ended December 31, 1995 and 1994
have been derived from the unaudited consolidated financial statements. The
data should be read in conjunction with the financial statements, related notes
and other financial information included herein and incorporated by reference.
The following selected historical consolidated financial data of Antenna as of
and for the years ended December 31, 1990 through 1994 have been derived from
audited consolidated financial statements, including those included herein.
Antenna data for the nine months ended September 30, 1995 and 1994 have been
derived from unaudited consolidated financial statements. The data should be
read in conjunction with the statements, related notes, and other financial
information included herein.
<TABLE>
Andrew Selected Historical Consolidated Financial Data
(In thousands, except per share data)
<CAPTION>
Three months ended
December 31
Year ended September 30 (Unaudited)
------------------------------------------------ --------------
1995 1994 1993 1992 1991 1995 1994
-------- -------- -------- -------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Income Statement Data:
Sales $626,463 $558,457 $430,820 $442,008 $416,229 $164,031 $142,605
Income from operations 110,095 76,518 46,676 43,840 40,482 25,594 19,003
Income from operations
per share 2.80 1.95 1.21 1.02 0.92 0.65 0.48
Balance Sheet Data:
Total assets 491,029 415,163 337,103 313,932 343,018 518,614 423,138
Long-term obligations 51,797 50,681 53,602 56,264 66,022 50,894 54,738
Stockholders' equity 351,378 272,854 219,570 192,224 217,471 366,627 283,429
</TABLE>
<TABLE>
Antenna Selected Historical Consolidated Financial Data
(In thousands, except per share data)
<CAPTION>
Nine months ended
September 30
Year ended December 31 (Unaudited)
------------------------------------------------ --------------
1994 1993 1992 1991 1990 1995 1994
-------- -------- -------- -------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Income Statement Data:
Sales $31,672 $23,122 $14,484 $6,210 $4,406 $28,373 $22,546
Income/(loss) from operations 3,092 2,009 2,389 150 (313) 2,786 2,599
Income/(loss) from operations
per share 343.56 223.22 265.44 16.67 (34.78) 309.56 288.78
Balance Sheet Data:
Total assets 12,186 10,122 6,000 2,416 2,044 14,022 10,261
Long-term obligations 4,509 1,883 1,695 1,667 1,454 2,995 3,390
Stockholders' equity/(deficit) 4,396 2,472 1,197 (295) (422) 5,738 3,790
</TABLE>
<PAGE>
COMPARATIVE PER SHARE DATA
The following table presents historical, unaudited pro forma combined and
unaudited pro forma equivalent per share data of Andrew and Antenna after giving
effect to the Merger using the pooling of interests method of accounting,
assuming the Merger had been effective during all periods presented. The pro
forma data do not purport to be indicative of the results of future operations
or the results that would have occurred had the Merger been consummated at the
beginning of the periods presented. The information set forth below should be
read in conjunction with the historical audited financial statements and notes
thereto of Andrew and Antenna incorporated by reference herein or included
elsewhere herein, and the unaudited pro forma combined condensed financial
statements included elsewhere herein.
The unaudited pro forma combined and unaudited pro forma equivalent per share
data combine Andrew's historical results for each of the three fiscal years in
the period ended September 30, 1995 and the unaudited three months ended
December 31, 1995 with the unaudited Antenna results for the each of the three
years in the period ended September 30, 1995. Such results have been recast,
from December 31, Antenna's fiscal year end, to conform to Andrew's fiscal year
end of September 30, and the unaudited results for the three months ended
December 31, 1995.
<TABLE>
Three Months
Ended
Fiscal year ended September 30 December 31
------------------------------ -----------
<CAPTION>
1995 1994 1993 1995
------ ------ ------ ------
<S> <C> <C> <C> <C>
ANDREW HISTORICAL PER SHARE DATA<F3>
Income from operations per share $ 2.80 $ 1.95 $ 1.21 $ 0.65
Book value per share at period end<F4> 9.01 7.12 5.81 9.39
ANTENNA HISTORICAL PER SHARE DATA<F3>
Income from operations per share 430.67 317.00 329.44 202.33
Book value per share at period end<F4> 637.56 421.11 251.33 773.33
PRO FORMA COMBINED DATA<F3>
Income from operations per share 2.81 1.96 1.25 0.67
Book value per share at period end<F4> 8.87 6.99 5.68 9.27
<FN>
<F3> Andrew and Antenna have never paid cash dividends.
<F4> Historical book value per share is computed by dividing the total
stockholder's equity by the number of shares of common stock outstanding
at the end of the period. Pro forma book value per share is computed by
dividing pro forma stockholders' equity by the pro forma number of shares
of Andrew Common Stock outstanding following the Merger.
</FN>
</TABLE>
<PAGE>
THE SPECIAL MEETING OF THE
ANTENNA SHAREHOLDERS
DATE, TIME AND PLACE
The special meeting (the "Meeting") of the shareholders of The Antenna Company,
an Illinois corporation ("Antenna") will be held on ________, 1996 at the
offices of Antenna located at 1100 Maplewood Drive, Itasca, Illinois, 60143 at
9:00 a.m., Central Standard Time.
PURPOSE OF THE MEETING
At the Meeting, the shareholders of Antenna will be asked to consider and vote
upon a proposal to approve a Plan and Agreement of Merger dated January 25, 1996
(the "Merger Agreement") between Andrew Corporation, a Delaware corporation
("Andrew") and Antenna, pursuant to which, among other things, Antenna will be
merged with and into Andrew (the "Merger") and Andrew will be the surviving
corporation. See "The Merger."
RECORD DATE
Only holders of record of Antenna common stock, $0.10 par value per share (the
"Antenna Common Stock") at the close of business on February 9, 1996
(the "Record Date") are entitled to vote at the Meeting. At the close of
business on the Record Date, there were 9,000 shares of Antenna Common Stock
outstanding.
REQUIRED VOTE
A majority of the issued and outstanding shares of Antenna Common Stock must be
present, either in person or by proxy, to constitute a quorum for the
transaction of business at the Meeting. According to the Illinois Business
Corporation Act of 1983, as amended (the "IBCA") and Antenna's Articles of
Incorporation, the affirmative vote of two-thirds of the issued and outstanding
shares of Antenna Common Stock is required for the approval of the Merger. Each
share of Antenna Common Stock is entitled to one vote.
On the Record Date, directors and executive officers of Antenna and their
affiliates had the right to vote approximately 69.3% of all issued and
outstanding shares of Antenna Common Stock entitled to vote at the Meeting.
PROXIES
All shares of Antenna Common Stock represented by properly executed and
unrevoked proxies which are received prior to or at the Meeting will be voted in
accordance with the instructions indicated in such proxies. Properly executed
proxies which do not contain voting instructions will be voted FOR approval of
the Merger Agreement. Shareholders are urged to mark the box on the proxy to
indicate how their shares are to be voted.
If an executed proxy is returned and the shareholder has abstained from voting
on approval of the Merger Agreement, the shares of Antenna Common Stock
represented by such proxy will be considered present at the meeting for purposes
of determining a quorum and for purposes of calculating the vote, but will not
be considered to have been voted in favor of the Merger Agreement. Because
approval of the Merger Agreement requires the affirmative vote of at least
two-thirds of the issued and outstanding shares of Antenna Common Stock,
abstentions will have the same effect as a vote against approval of the Merger
Agreement.
It is not expected that any matter other than those referred to in this Proxy
Statement/Prospectus will be brought before the Meeting. If, however, other
matters are properly presented, the persons named as proxies will vote in
accordance with their judgment with respect to such matters, unless
authority to do so is withheld in the proxy.
Any Antenna shareholder who executes and returns a proxy may revoke such proxy
at any time before it is voted by (i) providing written notice to the Secretary
of Antenna at 1100 Maplewood Drive, Itasca, Illinois 60143, (ii) granting a
subsequent proxy or (iii) appearing in person and voting at the Meeting.
Attendance at the Meeting will not in and of itself constitute revocation of a
proxy.
The approval of Andrew's stockholders is not required for Andrew to consummate
the Merger.
THE MERGER
Set forth below is a brief description of various provisions of the Merger
Agreement with references to specific sections. This summary does not purport to
be complete and is qualified in its entirety by reference to the complete Merger
Agreement which is attached to this Proxy Statement/Prospectus as Appendix A and
is incorporated by reference herein. The shareholders of Antenna are urged to
read the Merger Agreement in its entirety.
MERGER CONSIDERATION
Upon the terms and subject to the conditions contained in the Merger Agreement,
at the effective time of the Merger (the "Effective Time"), (i) Antenna will be
merged with and into Andrew and Andrew will continue in existence as the
surviving corporation, (ii) each outstanding share of Antenna Common Stock
(other than shares to be cancelled pursuant to clause (iii) below) will be
converted into the right to receive that number of shares of Andrew common
stock, par value $0.01 per share (the "Andrew Common Stock") equal to the
Exchange Ratio (as defined below), and (iii) each share of Antenna Common Stock
owned by Antenna as treasury shares or owned directly or indirectly by Antenna,
Andrew, or any of their respective wholly owned subsidiaries will be cancelled
and will cease to exist, and no stock of Andrew or other consideration will be
delivered in exchange therefor.
Pursuant to the Merger Agreement, the Exchange Ratio will be equal to the
quotient of (x) $52,500,000 divided by the number of shares of Antenna Common
Stock outstanding immediately prior to the Effective Time, divided by (y) the
greater of $42.00, or the average of the high and low per share sale price of
the Andrew Common Stock, as reported on the Nasdaq National Market (the "NNM")
for each of the ten trading days immediately preceding and including the second
trading day prior to the closing of the Merger (the "Closing"), as reported in
The Wall Street Journal (the "Andrew Stock Value"). If the Andrew Stock Value is
less than $38.00, then Antenna may terminate the Merger Agreement. See "--
Termination and Termination Fee."
Set forth below is a chart illustrating how the Exchange Ratio will vary
depending on the Andrew Stock Value.
Each share of Antenna Common Stock would be
converted into the following number of shares
If the Andrew Stock Value is: of Andrew Common Stock
- ----------------------------- ---------------------------------------------
$42.00 (or less) 138.889
$43.00 135.659
$44.00 132.576
$45.00 129.630
$46.00 126.812
$47.00 124.113
$48.00 121.528
$49.00 119.048
$50.00 116.667
$51.00 114.379
$52.00 112.179
BACKGROUND AND REASONS FOR THE MERGER
As a result of the death of Antenna's largest shareholder in 1991, 36% of
Antenna's Common Stock is held in a trust for the benefit of this former
shareholder's widow and children. Because the trust's principal asset is
Antenna Common Stock, little income or diversification of assets has been
available to the trust's beneficiaries. An increasing desire for liquidity on
the part of the trust's beneficiaries and certain other Antenna shareholders,
and several unsolicited indications from third parties during 1994 of an
interest in acquiring Antenna, resulted in Antenna entering into discussions in
December 1994 with The Chicago Corporation, an investment banking firm ("Chicago
Corp."), concerning Antenna's strategic alternatives.
In late January 1995, Chicago Corp. undertook a comprehensive analysis of
Antenna's strategic alternatives for maximizing shareholder value. Chicago
Corp. presented the results of its analysis to Antenna's principal shareholders
on May 4, 1995. Based on this analysis, Antenna's shareholders decided to seek
a buyer for all of Antenna's Common Stock. Chicago Corp. was engaged by Antenna
on May 17, 1995 to act as Antenna's financial advisor in connection with
soliciting interest from potential buyers of Antenna and assisting in the
negotiations with potential buyers for the purpose of consummating the sale of
all of Antenna's Common Stock.
<PAGE>
In connection with its role as financial advisor, Chicago Corp. prepared a
confidential memorandum for distribution to potential buyers which described
Antenna, its business, products, markets and historical and projected financial
results. Working with Antenna, Chicago Corp. developed a list of approximately
40 potential buyers to be contacted beginning in early August 1995 to ascertain
their interest in a potential acquisition of Antenna. From this list of initial
contacts, a total of 12 potential buyers received the confidential memorandum
and were instructed to inform Chicago Corp. within two weeks of their
preliminary interest level and valuation.
Andrew received a copy of the confidential memorandum from the Chicago Corp.
after signing a confidentiality agreement on August 11, 1995. As a result of
internal evaluations and discussions among executives, Andrew sent a letter to
Chicago Corp. indicating Andrew's preliminary interest in a possible
acquisition.
On August 29, 1995, a group of Andrew executives, including Floyd L. English,
the Chief Executive Officer, and Charles R. Nicholas, the Chief Financial
Officer, visited Antenna's offices in Itasca, Illinois, listened to
presentations by Antenna personnel, toured the facilities and engaged in
discussions with various managers from Antenna, including Roger Fisher,
President, and William Hamilton, a director.
During the period from August 30, 1995 through September 30, 1995, various
Andrew personnel engaged in further discussions to evaluate Andrew's interest
in Antenna. Mr. Nicholas conducted a number of negotiations by telephone with
Chicago Corp. during this period, resulting in a conditional
verbal agreement on September 20, 1995 to acquire Antenna in a pooling of
interests transaction. The agreement also was subject, among other things, to
the approval of Andrew's Board of Directors and the signing of a definitive
agreement. The unanimous approval of Andrew's Board was received at its regular
board meeting on September 21, 1995. Due diligence and negotiation of a
definitive agreement began immediately.
On October 9, 1995, Mr. English and Mr. Nicholas concluded that the stock
market's valuation of all telecommunication equipment suppliers had
deteriorated significantly since reaching the verbal agreement with Antenna.
Work began on re-evaluating the proposed transaction.
On October 11, 1995, various Antenna managers, Mr. Fisher, Mr. Hamilton and
Mary Kay McAllister (representing the Antenna shareholders) visited Andrew's
facilities in Orland Park, Illinois where a number of Andrew personnel,
including Mr. English and Mr. Nicholas, made presentations to and conducted
tours of the facilities for the Antenna personnel.
On October 17, 1995, Mr. Nicholas communicated revised terms of Andrew's offer
to Chicago Corp. In an October 25, 1995 letter, Chicago Corp., on
behalf of Antenna, rejected Andrew's offer. No further discussions were held
until a meeting on November 15, 1995 between Messrs. Fisher, Hamilton, English
and Nicholas.
At the November 15, 1995 meeting, various proposals were made by both parties.
Subsequent telephone negotiations resulted in a new conditional verbal
agreement on November 22, 1995 to merge Antenna and Andrew in a tax-free,
pooling of interests transaction as described in the Merger Agreement.
Between November 22, 1995 and January 25, 1996, various drafts of an agreement
were prepared and due diligence was performed. Andrew and Antenna signed the
definitive Merger Agreement on January 25, 1996.
The merger of Antenna into Andrew is attractive to Andrew because Antenna offers
high quality products, has a strong management team and reflects Andrew's own
customer-orientation. Antenna will provide Andrew with additional opportunities
to serve the expanding global wireless communications market. Andrew has been
developing its own wireless accessories business in Europe and believes that
Antenna's reputation and market presence, especially in North America, will
enable the merged companies to take advantage of significant growth
opportunities throughout the world.
<PAGE>
EFFECTIVE TIME OF THE MERGER
The Effective Time will occur upon the filing of the Articles of Merger with
the Illinois Secretary of State and the Certificate of Merger with the Delaware
Secretary of State, which Andrew and Antenna expect will occur not later than
five business days after the satisfaction or waiver of the conditions to the
Merger. See " -- Conditions to Closing."
CONVERSION OF SHARES IN THE MERGER
All of the shares of Antenna Common Stock converted into Andrew Common Stock
pursuant to the Merger will no longer be outstanding and will automatically be
canceled and cease to exist at the Effective Time, and each certificate
previously representing any such Antenna Common Stock will thereafter represent
the right to receive (i) a certificate representing the number of whole shares
of Andrew Common Stock and (ii) cash in lieu of fractional shares into which the
shares of Antenna Common Stock represented by such certificate have been
converted. If, prior to the Effective Time, the outstanding shares of Andrew
Common Stock or Antenna Common Stock are increased, decreased, changed into or
exchanged for a different number or kind of shares or securities as a result of
a reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split, or other similar change in capitalization, then
Andrew and Antenna have agreed that an appropriate and proportionate adjustment
will be made to the Exchange Ratio. [Section 2.1(b)]
At the Effective Time, all shares of Antenna Common Stock that are owned by
Antenna as treasury stock or owned, directly or indirectly, by Antenna, Andrew
or any of their respective wholly owned subsidiaries will be canceled and will
cease to exist, and no stock of Andrew or other consideration will be delivered
in exchange therefor. All shares of Andrew Common Stock that are owned by
Antenna or any of its wholly owned subsidiaries will become treasury stock of
Andrew. [Section 2.1(c)]
EXCHANGE OF CERTIFICATES
Upon proper surrender of an Antenna stock certificate for exchange and
cancellation to Andrew, the holder of such certificate will be entitled to
receive at the Closing in exchange therefor (i) a certificate representing that
number of whole shares of Andrew Common Stock to which such holder of Antenna
Common Stock has become entitled, and (ii) a check representing an amount in
cash determined by multiplying the greater of $42.00 and the Andrew Stock Value,
by the fraction of a share of Andrew Common Stock (rounded to the nearest
thousandth when expressed as an Arabic number) to which such holder would
otherwise be entitled to receive pursuant to the Merger Agreement. No interest
will be paid or accrued on any cash in lieu of fractional shares payable to
holders of Common Certificates. [Sections 2.1(a), 2.2(a)]
After the Effective Time, there will be no transfers on Antenna's stock
transfer books of shares of Antenna Common Stock. [Section 2.1(d)]
REPRESENTATIONS AND WARRANTIES
The Merger Agreement contains various representations and warranties by Andrew
and Antenna. Antenna's representations and warranties relate to the corporate
organization and capital structure of Antenna and its subsidiaries; Antenna's
authority to consummate the transactions contemplated by the Merger Agreement
and the lack of conflicts with certain of Antenna's other obligations;
regulatory matters; the filing of required governmental reports; compliance with
laws; Antenna's financial statements; the absence of certain changes affecting
Antenna and its subsidiaries since December 31, 1994; the absence of material
legal proceedings affecting Antenna and its subsidiaries; tax matters; employee
benefit matters; Antenna's employment and labor relations; contractual matters;
the absence of certain undisclosed liabilities; environmental matters; the
tangible assets and real estate owned by Antenna and its subsidiaries;
intellectual property matters; the inventory of Antenna and its subsidiaries;
the notes and accounts receivable of Antenna and its subsidiaries; the bank
accounts, powers of attorney and guaranties granted by Antenna and its
subsidiaries; certain insurance matters; service contracts and warranties
entered into by Antenna and its subsidiaries; relationships between Antenna or
its subsidiaries and various affiliates of Antenna; the information to be
included in the registration statement of which this Proxy Statement/Prospectus
is a part; broker's or finder's fees; pooling of interests matters; certain
customer relationships of Antenna; and the lack of omissions in any disclosure
made to Andrew. [Section 3]
<PAGE>
Andrew also makes various representations and warranties in the Merger Agreement
relating to its corporate organization and capital structure; Andrew's authority
to consummate the Merger Agreement and the lack of conflicts with certain of its
other obligations; regulatory matters; Andrew's financial statements; the
absence of material legal proceedings affecting Andrew; Andrew's reports to the
Securities and Exchange Commission (the "Commission"); information to be
included in the registration statement of which this Proxy Statement/Prospectus
is a part; broker's or finder's fees; corporate reorganization matters; and the
lack of omissions in any disclosure to Antenna. [Section 4]
CONDUCT OF BUSINESS PENDING CONSUMMATION OF THE MERGER
Andrew and Antenna have both agreed that prior to the Effective Time, both will,
and will cause each of their respective subsidiaries to, conduct their
businesses in the ordinary course consistent with past practice, use their
reasonable efforts to maintain and preserve intact their business organization
and advantageous business relationships, retain the services of their key
officers and employees and take no action that would adversely affect or delay
the ability of either of them to obtain the necessary governmental approvals
necessary to consummate the transactions contemplated by the Merger Agreement.
[Section 5.1]
In addition, Antenna has agreed that prior to the Effective Time, it will not,
and will not permit any of its subsidiaries to, take any of the following
actions without the prior written consent of Andrew: incur any indebtedness for
borrowed money or otherwise become liable for the obligations of another; engage
in certain actions regarding its capital structure; transfer or encumber any
properties or release any indebtedness or claims of third parties except in the
ordinary course of business consistent with past practice; make an investment in
a third party; enter into, amend or terminate certain contracts, except in the
ordinary course of business consistent with past practice; take certain actions
regarding compensation and benefits matters; settle any claim, action or
proceeding involving money damages, except in the ordinary course of business
consistent with past practice; take any action that would prevent or impede the
Merger from qualifying for "pooling of interests" accounting, or as a tax free
reorganization within the meaning of the Internal Revenue Code of 1986, as
amended (the "Code"); amend its articles of incorporation or bylaws; or take any
action that is intended or may reasonably be expected to result in any of the
representations and warranties set forth in the Merger Agreement being or
becoming untrue in any material respect, any of the conditions to the Merger not
being satisfied, or the violation of any provision of the Merger Agreement,
except as may be required by applicable law. [Section 5.2]
Andrew has further agreed that prior to the Effective Time, it will not, and
will not permit any of its subsidiaries to, take any of the following actions
without the prior written consent of Antenna: take any action that would prevent
or impede the Merger from qualifying as a reorganization under Section 368 of
the Code; or take any action that is intended or may reasonably be expected to
result in any of the representations and warranties set forth in the Merger
Agreement being or becoming untrue in any material respect, any of the
conditions to the Merger not being satisfied, or the violation of any provision
of the Merger Agreement, except as may be required by applicable law. [Section
5.3]
<PAGE>
CONDITIONS TO CLOSING
The obligations of Andrew and Antenna to effect the Merger are subject to the
satisfaction at or prior to the Effective Time of the following conditions: (i)
all regulatory approvals required to consummate the transactions contemplated by
the Merger Agreement must be obtained and must remain in full force and effect
and all statutory waiting periods in respect thereof must have expired; (ii) all
consents necessary to transfer all of Antenna's rights, title and interest to
its facility in Itasca, Illinois must have been obtained in accordance with the
lease, and shall remain in full force and effect; (iii) the registration
statement of which this Proxy Statement/Prospectus is a part must be declared
effective by the Commission and no stop order or proceeding regarding the
suspension of such effectiveness shall have been initiated or threatened by the
Commission; (iv) the Andrew Common Stock to be issued in the Merger must have
been authorized for listing on the NNM, subject to official notice of issuance;
(v) Andrew must have received all state securities or "blue sky" permits and
other authorizations necessary to issue the shares of Andrew Common Stock
pursuant to the Merger and the Merger Agreement; (vi) no order, injunction or
decree issued by any governmental authority or other legal restraint or
prohibition preventing the consummation of the Merger or any of the other
transactions contemplated by the Merger Agreement shall have been enacted,
entered, promulgated or enforced by any governmental authority which prohibits,
materially restricts or makes illegal the consummation of the Merger or the
other transactions contemplated by the Merger Agreement; and (vii) the Merger
Agreement and the transactions contemplated thereby must have been approved by
holders owning 66-2/3% or more of the issued and outstanding shares of Antenna
Common Stock. [Section 7.1]
The obligation of Andrew to effect the Merger is also subject to the
satisfaction or waiver by Andrew at or prior to the Effective Time of the
following conditions: (i) the representations and warranties of Antenna must be
true and correct in all material respects as of the Closing (except to the
extent that such representations and warranties speak as of an earlier date),
and Antenna must have performed in all material respects all of its obligations
pursuant to the Merger Agreement, and Andrew shall have received a certificate
signed by Antenna's president and vice president to that effect; (ii) no holder
of Antenna Common Stock may have validly exercised its "dissenters' rights"
pursuant to Sections 11.65 and 11.70 of the IBCA; (iii) Antenna Technologies,
Inc., an Illinois corporation ("ATI"), must have been dissolved in accordance
with the provisions of the IBCA, a certificate of dissolution applicable to ATI
must have been issued by the Secretary of State of Illinois, and no actions may
have been taken by ATI, its directors or its shareholders to revoke such
dissolution; (iv) Andrew must have either received from each shareholder of
Antenna an executed letter agreement substantially in the form attached to the
Merger Agreement that restricts the shareholder's ability to transfer any Andrew
Common Stock received pursuant to the Merger, or received an opinion from
McDermott, Will & Emery, special counsel to Antenna, to the effect that all
shareholders or groups thereof that did not execute and deliver such a letter to
Andrew are not "affiliates" of Antenna pursuant to Rule 145 of the Securities
Act of 1933, as amended (the "Securities Act") or otherwise pursuant to
Commission accounting releases with respect to "pooling of interests" accounting
treatment; (v) each of Roger K. Fisher and William A. Hamilton must have
executed and delivered a non-competition and confidentiality agreement to Andrew
substantially in the form attached to the Merger Agreement; (vi) Andrew must
have received from Ernst & Young, LLP the "pooling of interests" letter
described in the Merger Agreement and no governmental authority shall have taken
or proposed any action, and no statute, rule, regulation or order shall have
been enacted, promulgated, issued or proposed by any governmental authority that
would prevent Andrew from accounting for the Merger as a "pooling of interests;"
(vii) there shall not have occurred any change in Antenna or its subsidiaries
that would have a material adverse effect on the business, properties, profits,
operations or financial condition of Antenna and its subsidiaries taken as a
whole; (viii) Andrew must have received a legal opinion from McDermott, Will &
Emery substantially in the form attached to the Merger Agreement, together with
such closing documents and certificates as Andrew or its counsel may reasonably
request; (ix) Andrew must have received a federal tax opinion from Gardner,
Carton & Douglas; and Andrew and Gardner, Carton & Douglas, must have received
from Antenna an Officer's Certificate and from each shareholder a Shareholders'
Certificate that address reorganization matters, both substantially in the form
attached to the Merger Agreement. [Section 7.2]
The obligation of Antenna to effect the Merger is also subject to the
satisfaction or waiver by Antenna at or prior to the Effective Time of the
following conditions: (i) the representations and warranties of Andrew must be
true and correct in all material respects as of the Closing (except to the
extent that such representations and warranties speak as of an earlier date),
and Andrew must have performed in all material respects all of its obligations
pursuant to the Merger Agreement, and Antenna must have received a certificate
signed by Andrew's chief executive officer or chief financial officer to that
effect; (ii) the Antenna shareholders must have received a legal opinion from
Gardner, Carton & Douglas substantially in the form attached to the Merger
Agreement, together with such closing documents and certificates as Antenna or
its counsel may reasonably request; (iii) the Antenna shareholders must have
received a federal tax opinion from McDermott, Will & Emery; and (iv) there
shall not have occurred any change in Andrew or its subsidiaries that would have
a material adverse effect on the business, properties, profits, operations or
financial condition of Andrew and its subsidiaries taken as a whole. [Section
7.3]
<PAGE>
At any time prior to the Effective Time, the respective Boards of Directors of
Andrew and Antenna may, to the extent legally allowed, amend the Merger
Agreement, extend the time for the performance of any of the obligations or
other acts of the parties, waive any inaccuracies in the representations and
warranties contained in the Merger Agreement or in any document delivered
pursuant thereto or waive compliance with any of the agreements or conditions
contained therein. However, after the shareholders of Antenna have approved the
Merger Agreement and the consummation of the transactions contemplated thereby,
no amendment, extension or waiver of the Merger Agreement which reduces the
amount or changes the form of the consideration to be delivered to the holders
of Antenna Common Stock may be effected unless the consent of the Antenna
shareholders is obtained. [Section 8.3]
TERMINATION AND TERMINATION FEE
The Merger Agreement may be terminated and the Merger may be abandoned any time
prior to the Effective Time by the written mutual consent of the Andrew and
Antenna Boards of Directors. The Merger Agreement may be terminated in certain
other circumstances, as follows:
(i) by either the Antenna or the Andrew Board of Directors if any
Governmental Authority (as defined in the Merger Agreement) which must
grant a Requisite Regulatory Approval (as defined in the Merger
Agreement) has denied approval of the Merger, or any Governmental
Authority of competent jurisdiction has issued an order permanently
enjoining or otherwise prohibiting the consummation of the transactions
contemplated by the Merger Agreement;
(ii) by either the Antenna or the Andrew Board of Directors (provided
that the terminating party is not then in material breach of any
representation, warranty, covenant or other agreement contained in the
Merger Agreement) if (x) there has been a material breach of any of the
representations or warranties or any of the covenants or agreements
contained in the Merger Agreement on the part of the other party, which
breach is not cured within 30 days following written notice to the
party committing such breach, or which breach, by its nature or timing,
cannot be cured prior to the Closing, or (y) the Closing shall not have
occurred on or before March 1, 1996, provided, however, that neither
Board of Directors is entitled to terminate the Merger Agreement
pursuant to clause (y) if the reason the Closing has not occurred by
such date is because any Governmental Authority which must grant a
Requisite Regulatory Approval has failed to act, the registration
statement of which this Proxy Statement/Prospectus is a part shall
have been filed but not yet declared effective by the Commission, the
Meeting shall not have occurred in accordance with the requirements of
the IBCA or some similar event beyond the control of Andrew or Antenna
shall not have occurred by such date, or (z) the Closing shall not have
occurred on or before May 31, 1996;
(iii) by the Antenna Board of Directors (after consulting with its
legal counsel), if such action is required for the Board of Directors
to comply with its fiduciary duties to Antenna and its shareholders;
provided, however, that if such action is taken by Antenna, then within
2 days of such termination Antenna is obligated to pay to Andrew
$400,000 as reimbursement for Andrew's out-of-pocket expenses incurred
in connection with the transactions contemplated by the Merger
Agreement; and provided further, that if Antenna consummates any
transaction pursuant to a Takeover Proposal (as defined below) (x)
within 15 months following the date of the Merger Agreement, or (y)
pursuant to a definitive agreement executed by Antenna during such
15-month period, then Antenna shall also promptly pay to Andrew
$1,500,000 upon the occurrence of such a transaction; or
(iv) by Antenna if the Andrew Stock Value is less than $38.00.
[Section 8.1]
<PAGE>
NO SOLICITATIONS
The Merger Agreement places certain restrictions on the extent to which Antenna
and its subsidiaries may negotiate with prospective purchasers other than
Andrew. The Merger Agreement specifically provides that Antenna shall not, nor
shall it permit any of its consolidated subsidiaries to, and it shall use its
best efforts to cause its directors, officers, employees and stockholders, and
all investment bankers, attorneys or other advisors or representatives retained
by Antenna or any of its consolidated Subsidiaries not to, (i) solicit or
encourage the submission of any Takeover Proposal (as hereinafter defined), (ii)
participate in any discussions or negotiations regarding, or furnish to any
third party any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, a
Takeover Proposal, (iii) make or authorize any statement or recommendation in
support of any Takeover Proposal or (iv) enter into any agreement with respect
to any Takeover Proposal.
Notwithstanding the foregoing paragraph, the directors, executive officers or
stockholders of Antenna, or the investment bankers, attorneys, or other advisors
or representatives of Antenna may participate in discussions or negotiations
with, or furnish information to, any third party that makes a Takeover Proposal
if all of the following events shall have occurred: (i) Andrew has been notified
in writing of such Takeover Proposal within 24 hours of Antenna's receipt
thereof, including the identity of the party making the Takeover Proposal and
the specific terms and conditions thereof, and has been given copies of such
Takeover Proposal; (ii) such third party has made a written proposal to the
Antenna Board of Directors to consummate a Takeover Proposal, which proposal
identifies a price or range of values to be paid and based on the advice of
Antenna's investment bankers, the Antenna Board of Directors has determined that
such Takeover Proposal is financially more favorable to the shareholders of
Antenna than the terms of the Merger; (iii) the Antenna Board of Directors has
determined, based on the advice of Antenna's investment bankers, that such third
party is financially capable of consummating such Takeover Proposal; and (iv)
the Antenna Board of Directors has determined, after consultation with its
outside legal counsel, that its fiduciary duties require it to furnish
information to and negotiate with such third party. Notwithstanding the
foregoing, however, Antenna is prohibited from providing any non-public
information to such third party unless (x) prior to the date thereof Antenna has
provided such information to Andrew, (y) Antenna has notified Andrew in advance
of any such proposed disclosure of non-public information and has provided
Andrew with a description of the information Antenna intends to disclose, and
(z) Antenna provides such non-public information pursuant to a nondisclosure
agreement with terms which are at least as restrictive as the confidentiality
agreement entered into between Antenna and Andrew.
In addition to the foregoing requirements, the Merger Agreement provides that
Antenna will not accept or enter into any agreement concerning a Takeover
Proposal for a period of 48 hours or more after Andrew's receipt of a copy of
such Takeover Proposal. Upon compliance with the requirements in this and the
preceding paragraph, Antenna is entitled to terminate the Merger Agreement,
although Antenna may then be obligated to make certain payments to Andrew. See
"--Termination and Termination Fee."
For purposes of the Merger Agreement, "Takeover Proposal" is defined as any
proposal or offer for a merger, consolidation or other business combination
involving Antenna or any proposal or offer to acquire a material equity interest
in, or a substantial portion of the assets of, Antenna or the Antenna
Subsidiaries, other than by Andrew as contemplated by the Merger Agreement.
[Section 6.8]
INTERESTS OF CERTAIN PERSONS IN THE MERGER
Upon consummation of the Merger, Andrew plans to offer a management level
position to Roger K. Fisher, Antenna's current President and a member of
Antenna's Board of Directors. Therefore, Mr. Fisher may be deemed to have
certain interests in the Merger which are in addition to the interests of
Antenna shareholders generally.
REGISTRATION AND LISTING
Andrew has agreed to register under the Securities Act the shares of Andrew
Common Stock to be issued in connection with the Merger. In addition, Andrew has
agreed to use its reasonable efforts to obtain all necessary state securities or
"blue sky" qualifications, permits and approvals required to consummate the
transactions contemplated by the Merger Agreement. Antenna has agreed to
cooperate with Andrew in taking such actions. [Section 6.1]
<PAGE>
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following summary, based upon current law, is a general discussion of
certain federal income tax consequences of the Merger to Andrew, Antenna, and
holders of Antenna Common Stock assuming the Merger is consummated as
contemplated herein. This summary is based upon the Code, applicable Treasury
regulations thereunder and administrative rulings and judicial authority as of
the date hereof, all of which are subject to change, possibly with retroactive
effect. Any such change could affect the continuing validity of this summary.
This summary applies to holders of Antenna Common Stock who hold their Antenna
Common Stock as capital assets. This summary does not discuss all aspects of
income taxation that may be relevant to a particular holder of Antenna common
stock in light of such holder's specific circumstances or to certain types of
holders subject to special treatment under the federal income tax laws (for
example, trusts and holders who acquired Antenna Common Stock pursuant to the
exercise of options or otherwise as compensation or through a tax-qualified
retirement plan), and it does not discuss any aspect of state, local, foreign or
other tax laws.
No ruling has been (or will be) sought from the Internal Revenue Service as to
the anticipated tax consequences of the Merger. McDermott, Will & Emery, counsel
to Antenna, has advised the shareholders of Antenna that, in its opinion, the
following discussion, insofar as it relates to matters of federal income tax
law, is a fair and accurate summary of such matters. HOLDERS OF ANTENNA COMMON
STOCK SHOULD CONSULT THEIR TAX ADVISORS AS TO THE TAX CONSEQUENCES TO THEM OF
THE MERGER, INCLUDING THE APPLICABILITY AND EFFECT OF FEDERAL, STATE, LOCAL AND
FOREIGN INCOME AND OTHER TAX LAWS.
The Merger. It is a condition to the consummation of the Merger that the
shareholders of Antenna receive an opinion from McDermott, Will & Emery, special
counsel to Antenna, and that Andrew receive an opinion from Gardner, Carton &
Douglas, its special counsel, that the Merger will constitute a reorganization
for federal income tax purposes within the meaning of Section 368(a) of the
Code. The opinions of McDermott, Will & Emery and Gardner, Carton & Douglas will
be expressly based upon the truth and accuracy of certain assumptions and the
representations made to such counsel by Antenna, Andrew and certain holders of
Antenna Common Stock, regarding, among other things, the retention of a
significant continuing equity interest in Andrew by the historic shareholders of
Antenna and either the continuation by Andrew of the historic business of
Antenna or the use of a significant portion of Antenna's historic business
assets in a trade or business. As a reorganization for federal income tax
purposes within the meaning of Section 368(a) of the Code, the Merger will
result in the following general federal income tax consequences:
1. Andrew and Antenna will not recognize any gain or
loss as a result of the Merger.
2. No gain or loss will be recognized by holders of
Antenna Common Stock who exchange their shares for Andrew Common Stock,
except with respect to any cash received by Antenna shareholders in
lieu of fractional shares of Andrew Common Stock.
3. A holder of Antenna Common Stock who receives cash in lieu
of a fractional share of Andrew Common Stock in the Merger generally
will be treated as if the fractional share had been distributed to such
holder as part of the Merger and then redeemed by Andrew in exchange
for the cash distributed in lieu of the fractional share in a
transaction qualifying as an exchange under Section 302 of the Code. As
a result, a holder of Antenna Common Stock generally will recognize
capital gain or loss with respect to the cash payment received in lieu
of a fractional share.
4. Each holder's aggregate tax basis in the Andrew Common
Stock received in the Merger will equal his or her aggregate tax basis
in the Antenna Common Stock exchanged therefor, decreased by the amount
of any tax basis allocable to any fractional share interest for which
cash is received.
5. Provided that the Antenna Common Stock is held as a
capital asset at the Effective Time, the holding period of Andrew
Common Stock received in the Merger in exchange therefor will include
the holding period of such Antenna Common Stock.
Federal Income Tax Consequences to Dissenters. The payment of cash to a holder
of Antenna Common Stock who exercises dissenters' rights under the IBCA with
respect to such shares will result in a taxable transaction to such holder.
See "The Merger -- Dissenters' Rights." Such payment will be
treated as a distribution in redemption of the Antenna Common Stock with respect
to which dissenters' rights were exercised and perfected, the consequences of
which will be determined in accordance with Section 302 of the Code.
<PAGE>
Backup Withholding. To prevent "backup withholding" of federal income tax on any
payments of cash to a holder of Antenna Common Stock in the Merger, a holder of
Antenna Common Stock must, unless an exception applies under the applicable law
and regulations, provide Andrew with such holder's correct taxpayer
identification number ("TIN") on a Substitute Form W-9 and certify under
penalties of perjury that such number is correct and that such holder is not
subject to backup withholding. If the correct TIN and certifications are not
provided, a $50 penalty may be imposed on a holder of Antenna Common Stock by
the Internal Revenue Service, and any cash received by such holder may be
subject to backup withholding at a rate of 31%.
THE DISCUSSION OF FEDERAL INCOME TAX CONSEQUENCES SET FORTH ABOVE IS FOR GENERAL
INFORMATION ONLY AND IS BASED ON EXISTING LAW AS OF THE DATE OF THIS PROXY
STATEMENT/PROSPECTUS. SHAREHOLDERS OF ANTENNA ARE URGED TO CONSULT THEIR TAX
ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO THEM OF
THE MERGER (INCLUDING THE APPLICABILITY AND EFFECT OF FEDERAL, STATE, LOCAL,
FOREIGN AND OTHER TAX LAWS).
ACCOUNTING TREATMENT
Andrew and Antenna intend that the Merger be accounted for as a "pooling of
interests" for accounting and financial reporting purposes. It is a condition
to the obligation of Andrew to consummate the Merger that Andrew shall have
received a letter, dated as of the closing date, from Ernst & Young LLP,
regarding the appropriateness of pooling of interests accounting for the merger
under Accounting Principles Board Opinion No. 16 if closed and consummated in
accordance with the agreement. See "The Merger--Closing Conditions."
REGULATORY APPROVALS
The consummation of the Merger is subject to the requirements of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") pursuant
to which Andrew and Antenna must file Notification and Report Forms (the
"Forms") with the Antitrust Division of the Department of Justice (the
"Antitrust Division") and the Federal Trade Commission (the "FTC"). The Merger
may not be consummated until thirty days after receipt of the Forms by the
Antitrust Division and the FTC, unless such thirty day waiting period is
earlier terminated by the FTC or the Antitrust Division.
On January 29, 1996, Andrew and Antenna filed the Forms with the FTC and the
Antitrust Division and the waiting period under the HSR Act is expected to
expire on February 28, 1996. Early termination of the required waiting period
under the HSR Act has been requested by Andrew and Antenna, but has not yet been
granted. The requirements of the HSR Act will be satisfied if the Merger is
consummated within one year from the expiration or earlier termination of the
waiting period.
Andrew and Antenna are aware of no other governmental or regulatory approvals
required for consummation of the Merger, other than compliance with applicable
securities and "blue sky" laws.
DISSENTERS' RIGHTS
Sections 11.65 and 11.70 of the IBCA entitle any shareholder of Antenna to
dissent from the Merger and obtain payment in cash for the "fair value" of his
or her Antenna Common Stock, instead of receiving the shares of Andrew Common
Stock to which he or she would otherwise be entitled pursuant to the Merger
Agreement. To exercise such dissenters' rights, shareholders of Antenna must
comply with the procedural requirements of Section 11.70 of the IBCA, a summary
of which is provided below.
Shareholders of Antenna who follow the procedures set forth in Section 11.70 of
the IBCA will be entitled to dissent from the Merger and to obtain payment for
the "fair value" of their shares immediately before the consummation of the
Merger, exclusive of any appreciation or depreciation in anticipation of the
Merger, unless such exclusion would be inequitable (the "Fair Value"), plus
accrued interest from the Effective Time of the Merger until the date of
payment, at the average rate currently paid by Antenna on its principal bank
loans, or if none, at a rate that is fair and equitable under all circumstances
(the "Interest").
<PAGE>
If shares of Antenna Common Stock are owned of record in a fiduciary capacity,
such as by a trustee, a beneficial owner may not assert dissenters' rights as to
such shares unless the beneficial owner submits to Antenna the record owner's
written consent to the dissent before or at the same time the beneficial owner
asserts dissenters' rights.
If a shareholder desires to exercise its dissenters' rights pursuant to the
IBCA, the shareholder must deliver to Antenna a written demand for payment of
the Fair Value of its shares prior to the date of the Meeting. In addition, any
shareholder exercising such dissenters' rights must not vote in favor of the
Merger at the Meeting, and must not execute any proxy appointing another to vote
in favor of the Merger. A VOTE AGAINST THE MERGER WILL NOT IN ITSELF CONSTITUTE
A WRITTEN DEMAND FOR PAYMENT, AND A FAILURE TO VOTE WILL NOT AFFECT THE VALIDITY
OF A TIMELY WRITTEN DEMAND. HOWEVER, THE SUBMISSION OF A BLANK PROXY WILL
CONSTITUTE A VOTE IN FAVOR OF THE MERGER AND A WAIVER OF STATUTORY DISSENTERS'
RIGHTS.
Section 11.70 of the IBCA provides that a shareholder who makes such a written
demand for payment retains all other rights of a shareholder until those rights
are cancelled or modified by the consummation of the Merger. Upon consummation
of the Merger, Antenna is required to pay to each dissenter who transmits to
Antenna the certificate or other evidence of ownership of the shares, the amount
Antenna estimates to be the Fair Value of the shares, plus Interest, accompanied
by a written explanation of how the Interest was calculated.
By the later of 10 days after the Effective Time or 30 days after the date the
shareholder delivers to Antenna the aforementioned written demand for payment,
Antenna will send each such shareholder (i) a statement setting forth Antenna's
opinion as to the estimated Fair Value of the shares; (ii) Antenna's latest
balance sheet, together with the income statement for that year and the latest
available interim financial statements; and (iii) a commitment to pay for the
shares of the dissenting shareholder at the estimated Fair Value thereof upon
transmittal to Antenna of the certificate or certificates, or other evidence of
ownership, with respect to the shares.
In the event that the shareholder does not agree with Antenna's assessment of
the estimated Fair Value of the shares or the amount of Interest due, the
shareholder must notify Antenna in writing within 30 days from the delivery of
Antenna's statement of value. Such written notification must include the
shareholder's estimated Fair Value and amount of Interest due, and demand
payment for the difference between the shareholder's estimate of Fair Value and
Interest due and the amount of the payment offered by Antenna.
If within 60 days after the shareholder delivers to Antenna notification of his
or her estimate of the Fair Value of the shares and the Interest due, Antenna
and the dissenting shareholder have not agreed in writing upon the Fair Value of
the shares and Interest due, Antenna shall either pay the difference in value
demanded by the shareholder, with Interest, or file a petition in the Circuit
Court of Cook or DuPage County, requesting the court to determine the Fair Value
of the shares and Interest due. The failure of Antenna to commence such an
action will not limit or affect the right of the dissenting shareholders to
otherwise commence an action as permitted by law.
In such a judicial proceeding, each dissenter made a party to the proceeding is
entitled to judgment for the amount, if any, by which the court finds that the
Fair Value of his or her shares, plus Interest, exceeds the amount paid by
Andrew for the shares. If such a proceeding is instituted, then under certain
circumstances the court may force Andrew or the dissenting shareholder to
reimburse the other parties for the costs, fees and expenses related to such
proceeding.
THE FOREGOING SUMMARY IS NOT A COMPLETE STATEMENT OF THE LAW PERTAINING TO
DISSENTERS' RIGHTS UNDER THE IBCA. ANY SHAREHOLDER CONTEMPLATING THE EXERCISE OF
DISSENTERS' RIGHTS SHOULD REVIEW CAREFULLY THE PROVISIONS OF SECTIONS 11.65 AND
11.70 OF THE IBCA (COPIES OF WHICH ARE ATTACHED AS APPENDIX B TO THIS PROXY
STATEMENT/PROSPECTUS), PARTICULARLY THE SPECIFIC PROCEDURAL STEPS REQUIRED TO
PERFECT SUCH RIGHTS. IF THE PROCEDURAL REQUIREMENTS OF SECTION 11.70 ARE NOT
PRECISELY SATISFIED SUCH RIGHTS WILL BE LOST.
<PAGE>
RESALE OF ANDREW COMMON STOCK ISSUED IN THE MERGER; AFFILIATES
The Andrew Common Stock to be issued to Antenna shareholders in connection with
the Merger will be freely transferable under the Securities Act, except for
Andrew Common Stock issued to any person deemed to be an affiliate of Antenna
for purposes of Rule 145 under the Securities Act ("Rule 145") or otherwise
pursuant to Commission accounting releases with respect to "pooling of
interests" accounting treatment. Affiliates may not sell their Andrew Common
Stock acquired in connection with the Merger except pursuant to an effective
registration statement under the Securities Act covering such shares, or in
compliance with Rule 145 or another applicable exemption from the registration
requirements of the Securities Act. Pursuant to the Merger Agreement, Antenna
has agreed to either (i) obtain a written agreement from each of its
shareholders pursuant to which such shareholder would agree not to sell,
transfer or otherwise dispose of any Andrew Common Stock received pursuant to
the Merger, except in accordance with the requirements of the Securities Act and
any rules and regulations promulgated thereunder, or (ii) deliver to Andrew an
opinion from McDermott, Will & Emery confirming that any shareholder failing to
execute and deliver such an agreement is not an affiliate pursuant to Rule 145
under the Securities Act or otherwise pursuant to Commission accounting releases
with respect to "pooling of interests" accounting treatment. [Section 6.5]
<PAGE>
PRO FORMA COMBINED CONDENSED FINANCIAL STATEMENTS (UNAUDITED)
The following unaudited pro forma combined condensed financial statements give
effect to the Merger of Andrew and Antenna under the pooling of interests method
of accounting. These pro forma financial statements are presented for
illustrative purposes only and, therefore, are not necessarily indicative of the
operating results or financial position that would have occurred or might have
been achieved had the Merger occurred as of an earlier date, nor are they
necessarily indicative of operating results or financial position that may occur
in the future.
A pro forma combined condensed balance sheet is provided as of December 31,
1995, giving effect to the Merger as though it had been consummated on that
date. Pro forma combined condensed statements of operations are provided for
the three-month periods ended December 31, 1995 and 1994 and for the years
ended September 30, 1995, 1994 and 1993, giving effect to the Merger as though
it had occurred at the beginning of the earliest period presented.
The pro forma combined condensed financial statements are derived from, and
should be read in conjunction with the accompanying notes and the historical
consolidated financial statements of the respective companies and the related
notes thereto. The financial statements of Antenna have been recast, from
December 31, Antenna's fiscal year end, to conform to Andrew's fiscal year end
of September 30.
<PAGE>
<TABLE>
ANDREW CORPORATION AND THE ANTENNA COMPANY
PRO FORMA COMBINED CONDENSED BALANCE SHEET
AS OF DECEMBER 31, 1995
(In thousands)
(Unaudited)
<CAPTION>
Pro Forma Pro Forma
Andrew Antenna Adjustments Combined
<S> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 22,291 $ 527 $ 22,818
Accounts receivable 150,228 5,661 155,889
Inventories 131,737 6,683 138,420
Miscellaneous current assets 4,831 371 5,202
-------- ------- ------- --------
Total current assets 309,087 13,242 - 322,329
Property, plant and equipment, net 116,723 1,977 118,700
Goodwill 42,198 - 42,198
Investments and other assets 50,606 - 50,606
-------- ------- ------- --------
Total assets $518,614 $15,219 - $533,833
======== ======= ======= ========
LIABILITIES AND
STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 29,011 $ 4,418 $ 33,429
Accrued expenses and
other liabilities 46,279 828 47,107
Income taxes 14,476 124 14,600
Current portion of
long-term debt 4,545 150 4,695
-------- ------- ------- --------
Total current liabilities 94,311 5,520 - 99,831
Long-term debt, less
current portion 45,240 2,739 47,979
Deferred liabilities and other 12,436 - 12,436
Stockholders' equity:
Common stock 457 1 (1) 457
Additional paid-in capital 44,577 10 (10,798) 33,789
Retained earnings 378,465 6,989 (1) 385,453
Translation adjustment 354 (40) 314
Treasury stock (57,226) 10,800 (46,426)
-------- ------- ------- --------
366,627 6,960 -- 373,587
-------- ------- ------- --------
Total liabilities and equity $518,614 $15,219 - $533,833
======== ======= ======= ========
</TABLE>
<PAGE>
<TABLE>
ANDREW CORPORATION AND THE ANTENNA COMPANY
PRO FORMA COMBINED CONDENSED STATEMENT OF OPERATIONS
FOR THE QUARTER ENDED DECEMBER 31, 1995
(In thousands, except per share data)
(Unaudited)
<CAPTION>
Pro Forma Pro Forma
Andrew Antenna Adjustments Combined
<S> <C> <C> <C> <C>
Sales $164,031 $ 13,892 $177,923
Expenses:
Cost of products sold 96,784 9,212 105,996
Selling, general and
administrative 34,555 2,439 36,994
Research and development 7,098 420 7,518
-------- -------- ----- --------
138,437 12,071 - 150,508
-------- -------- ----- --------
Operating income 25,594 1,821 - 27,415
Other expense 1,020 23 1,043
-------- -------- ----- --------
Income before income taxes 24,574 1,798 - 26,372
Income tax expense 8,847 665 9,512
-------- -------- ----- --------
Net income $ 15,727 $ 1,133 - $ 16,860
======== ======== ===== ========
Net income per share $ 0.40 $ 125.89 - $ 0.41
======== ======== ===== ========
Weighted average common
shares outstanding 39,616 9 1,241 40,866
======== ======== ===== ========
</TABLE>
<PAGE>
<TABLE>
ANDREW CORPORATION AND THE ANTENNA COMPANY
PRO FORMA COMBINED CONDENSED STATEMENT OF OPERATIONS
FOR THE QUARTER ENDED DECEMBER 31, 1994
(In thousands, except per share data)
(Unaudited)
<CAPTION>
Pro Forma Pro Forma
Andrew Antenna Adjustments Combined
<S> <C> <C> <C> <C>
Sales $142,605 $ 9,126 $151,731
Expenses:
Cost of products sold 83,847 5,574 89,421
Selling, general and
administrative 34,115 2,123 36,238
Research and development 5,640 333 5,973
-------- -------- ----- --------
123,602 8,030 - 131,632
-------- -------- ----- --------
Operating income 19,003 1,096 - 20,099
Other expense 1,450 102 1,552
-------- -------- ----- --------
Income before income taxes 17,553 994 - 18,547
Income tax expense 6,319 368 6,687
-------- -------- ----- --------
Net income $ 11,234 $ 626 - $ 11,860
======== ======== ===== ========
Net income per share $ 0.28 $ 69.56 - $ 0.29
======== ======== ===== ========
Weighted average common
shares outstanding 39,435 9 1,241 40,685
======== ======== ===== ========
</TABLE>
<PAGE>
<TABLE>
ANDREW CORPORATION AND THE ANTENNA COMPANY
PRO FORMA COMBINED CONDENSED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED SEPTEMBER 30, 1995
(In thousands, except per share data)
(Unaudited)
<CAPTION>
Pro Forma Pro Forma
Andrew Antenna Adjustments Adjustments
<S> <C> <C> <C> <C>
Sales $626,463 $ 37,499 $663,962
Expenses:
Cost of products sold 357,745 23,725 381,470
Selling, general and
administrative 134,852 8,545 143,397
Research and development 23,771 1,353 25,124
-------- -------- ----- --------
516,368 33,623 -- 549,991
-------- -------- ----- --------
Operating income 110,095 3,876 -- 113,971
Other expense 4,143 219 4,362
-------- -------- ----- --------
Income before income taxes 105,952 3,657 -- 109,609
Income tax expense 38,143 1,520 39,663
-------- -------- ----- --------
Net income $ 67,809 $ 2,137 -- $ 69,946
======== ======== ===== ========
Net income per share $ 1.73 $ 237.44 -- $ 1.73
======== ======== ===== ========
Weighted average common
shares outstanding 39,295 9 1,241 40,545
======== ======= ===== ========
</TABLE>
<PAGE>
<TABLE>
ANDREW CORPORATION AND THE ANTENNA COMPANY
PRO FORMA COMBINED CONDENSED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED SEPTEMBER 30, 1994
(In thousands, except per share data)
(Unaudited)
<CAPTION>
Pro Forma Pro Forma
Andrew Antenna Adjustments Combined
<S> <C> <C> <C> <C>
Sales $558,457 $ 29,776 $588,233
Expenses:
Cost of products sold 326,261 19,224 345,485
Selling, general and
administrative 129,971 6,745 136,716
Research and development 25,707 954 26,661
-------- -------- ----- --------
481,939 26,923 -- 508,862
-------- -------- ----- --------
Operating income 76,518 2,853 -- 79,371
Other expense 7,152 452 7,604
-------- -------- ----- --------
Income before income taxes 69,366 2,401 -- 71,767
Income tax expense 24,971 901 25,872
-------- -------- ----- --------
Net income $ 44,395 $ 1,500 -- $ 45,895
======== ======== ===== ========
Net income per share $ 1.13 $ 166.67 -- $ 1.14
======== ======== ===== ========
Weighted average common
shares outstanding 39,177 9 1,241 40,427
======== ======== ===== ========
</TABLE>
<PAGE>
<TABLE>
ANDREW CORPORATION AND THE ANTENNA COMPANY
PRO FORMA COMBINED CONDENSED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED SEPTEMBER 30, 1993
(In thousands, except per share data)
(Unaudited)
<CAPTION>
Pro Forma Pro Forma
Andrew Antenna Adjustments Combined
<S> <C> <C> <C> <C>
Sales $430,820 $ 21,136 $451,956
Expenses:
Cost of products sold 252,186 13,115 265,301
Selling, general and
administrative 109,947 4,588 114,535
Research and development 22,011 468 22,479
-------- -------- ----- --------
384,144 18,171 -- 402,315
-------- -------- ----- --------
Operating income 46,676 2,965 -- 49,641
Other expense 3,085 382 3,467
-------- -------- ----- --------
Income before income taxes 43,591 2,583 -- 46,174
Income tax expense 15,729 982 16,711
-------- -------- ----- --------
Net income $ 27,862 $ 1,601 -- $ 29,463
======== ======== ===== ========
Net income per share $ 0.72 $ 177.89 -- $ 0.74
======== ======== ===== ========
Weighted average common
shares outstanding 38,433 9 1,241 39,683
======== ======= ===== ========
</TABLE>
<PAGE>
NOTES TO PRO FORMA COMBINED CONDENSED FINANCIAL STATEMENTS
(UNAUDITED)
1. The unaudited pro forma combined condensed balance sheet reflects the
issuance of 1,250,000 shares of Andrew Common Stock in exchange for 9,000
shares of Antenna Common Stock. The number of shares of Andrew Common Stock
to be issued is based on the Exchange Ratio of 138.89. The actual number of
shares of Andrew Common Stock to be issued will be determined at the
Effective Time of the Merger based on the Exchange Ratio at that date.
2. Pro Forma Earnings per share for each period is based on the weighted
average number of shares of Andrew Common Stock outstanding, plus the
weighted average number of shares of Antenna Common Stock outstanding
multiplied by the Exchange Ratio.
3. There were no material differences between the accounting policies of Andrew
and Antenna during the periods presented.
ANDREW COMPARATIVE PER SHARE PRICES AND DIVIDEND POLICY
Andrew Common Stock is traded on the NNM under the symbol "ANDW". The following
table sets forth the high and low closing prices as reported by NNM.
High Low
Fiscal 1996:
First quarter $59.00 $37.00
Second quarter (through February 6) 47.25 31.13
Fiscal 1995:
First quarter 35.75 29.50
Second quarter 44.75 34.00
Third quarter 57.88 41.00
Fourth quarter 64.00 55.00
Fiscal 1994:
First quarter 19.33 13.17
Second quarter 23.17 16.17
Third quarter 26.33 20.50
Fourth quarter 33.50 24.00
Fiscal 1993:
First quarter 10.83 7.33
Second quarter 13.45 9.22
Third quarter 12.67 8.67
Fourth quarter 17.45 11.89
Andrew has never paid cash dividends. It is the present policy of the Andrew
Board of Directors to retain earnings in the business to finance investment and
operations.
INFORMATION CONCERNING ANDREW
BUSINESS
Andrew is an international supplier of communications systems equipment and
services. Important markets are wireless communications, including cellular,
personal communication systems, land mobile radio and common carrier, along
with broadcast, corporate and government institutions. Customers, products and
applications are found worldwide, with 45% of sales in 1995 outside of the
United States.
Andrew's executive offices are located at 10500 West 153rd Street, Orland Park,
Illinois 60462, which is approximately 25 miles southwest of Chicago's loop, and
its telephone number is (708) 349-3300.
INFORMATION CONCERNING ANTENNA
BUSINESS
Antenna designs, assembles, tests, packages, and markets cellular antenna
products and cellular phone accessories. Antenna's products are sold primarily
through the retail distribution channels of cellular service providers
("Carriers"). Due to its reputation for quality and ability to supply all
existing and emerging cellular platforms, Antenna believes it is well positioned
in the wireless communications industry to benefit from growth of the existing
cellular market as well as the anticipated emergence of new wireless services
such as Personal Communications Services ("PCS") and Enhanced Specialized Mobile
Radio ("ESMR").
PRODUCTS
Antenna markets approximately 60 products. Products are grouped as antenna
products and accessory products. Antenna products include a variety of mobile
antennas, portable and transportable phone antennas, and antenna parts.
Accessory products include batteries, battery chargers, battery adapters,
battery cases, phone mounts and cradles, and the Drive Time Kit(R), which is an
adapter product designed to allow portable phone users to obtain improved
performance from their phone while using it in a vehicle.
Antenna Products
Mobile Antennas
Mobile antennas are antennas used for car phones. Antenna markets 15 mobile
antenna models that can be attached to an automobile either through a "glass
mount" affixed to the side or rear window, a "drill through mount" attached to
the roof of the car, or a "clip mount" attached to the driver's side window.
Products are designed and tested to ensure outstanding performance. A specially
designed composite of stainless steel, nickel, copper, and black chrome helps
reduce vibration and wind whistling and protect the antenna from exposure to
potentially damaging environmental conditions such as rain, snow, extreme
temperatures, stray rocks or debris, and vandalism.
Portable and Transportable Antennas
Portable and transportable phone antennas are antennas which are used with a
portable or transportable phone when such a phone is being used in an
automobile. The performance of a portable or transportable phone in an
automobile is significantly improved when used with an antenna that is located
outside of the vehicle. Antenna designs, assembles, and markets a variety of
portable and transportable phone antennas that can be attached to the outside of
a vehicle in a number of ways.
Accessory Products
Batteries, Battery Chargers, and Battery Adapters
Battery chargers help ensure maximum airtime as well as protect the battery.
The chargers contain a microprocessor that controls the process and cuts the
flow once voltage reaches the optimal level. The battery adapter provides
portable phone users with unlimited talk time in the vehicle by connecting the
phone to the automobile battery through the cigarette lighter.
Mounts and Cradles
Antenna designs and assembles a variety of cradles and mounts used in
automobiles to hold mobile and portable cellular phones. The products are
available in various shapes and sizes to meet all installation requirements.
Drive Time Kit(R)
The Drive Time Kit is an external adapter kit designed to improve performance
of the Motorola Flip Phone. The kit includes an internal adapter, cable
antenna, connector and a rubber spike antenna. The adapter enables users to
connect either an external antenna for use while driving or a rubber
spike antenna for use outside the car.
CUSTOMERS AND DISTRIBUTION CHANNELS
During 1994, Antenna sold products to approximately 300 customers. In 1994,
Antenna's top 10 customers accounted for approximately 55% of total U.S. sales.
Antenna believes it is strongly positioned with cellular phone service Carriers,
which are Antenna's largest customer group. The majority of cellular phones and
cellular phone products and accessories are sold through Carrier retail
channels. Consumers purchase cellular phone services through these channels and
then purchase the necessary hardware, which at a minimum includes a cellular
phone.
Antenna also sells its products to distributors who then resell these products
to dealers and cellular Carriers. Dealers sell, install, and service cellular
telephone, paging and two-way radio communications equipment primarily for the
consumer and small business markets. Because of its position at the high-end
of the market, Antenna has not emphasized the mass merchandiser distribution
channel.
Antenna's products are also sold in approximately 35 foreign countries.
MANUFACTURING, ENGINEERING, ASSEMBLY AND QUALITY CONTROL
All of Antenna's manufacturing, engineering, assembly, and quality control
operations are conducted at Antenna's headquarters in Itasca, Illinois. The
assembly operation runs 1-1/2 daily production shifts. To increase efficiency
and keep manufacturing costs low, Antenna utilizes a number of independent
contractors in the manufacturing process. To assure high quality across
manufacturing processes, a testing and quality assurance facility is also
operated at Antenna headquarters. Antenna has a staff of 13 engineers who are
dedicated to enhancement of Antenna's products as well as the development of new
products.
Antenna purchases a wide range of raw materials, parts, and outsourcing services
from a variety of sources. Primary raw materials include cable, connectors,
spike antennas, batteries, screw machine parts, leather cases, and battery
savers. Outsourcing services include metal stamping, plastic injection molding
and wire bending. In 1994 the top ten suppliers accounted for approximately 40%
of total purchases and no one supplier accounted for more than 6.5% of total
purchases.
PROPERTY AND EQUIPMENT
Antenna's operations are headquartered in Itasca, Illinois. The operations are
housed in a 77,000 square foot building consisting of 25,000 square feet of
occupied warehouse space, 15,000 square feet of unused warehouse space, 22,000
square feet of office space, and 15,000 square feet for loading docks, restrooms
and lunch rooms. Antenna has a five-year lease on its building with an option to
renew at the end of five years. Management believes that the available
production space in this facility could support a minimum 50% increase in
revenue. Antenna also maintains sales offices in Dallas, Texas, Toronto, Canada,
Vienna, Austria, and London, England.
Antenna had $3.1 million in gross fixed assets at December 31, 1994.
Significant projects include purchases of molds, dies, and tooling which are
depreciated over a three-year period and electronic equipment which is
depreciated over four to ten years.
EMPLOYEES
Antenna employs approximately 120 people of which approximately 45 are salaried
and 75 are hourly. None of Antenna's employees are subject to a collective
bargaining agreement and Antenna believes its relationship with its employees
is good.
MARKET FOR SHARES AND DIVIDENDS
There is no established public trading market for the Antenna Common Stock.
As of the date of this Registration Statement there are eight holders of record
of Antenna Common Stock. Following the Merger, there will be no shares of
Antenna Common Stock outstanding. Antenna did not declare any cash dividends
on Antenna Common Stock during the fiscal years ended December 31, 1994 and
December 31, 1993 and during the nine months ended September 30, 1995.
SECURITY OWNERSHIP
The following table sets forth, as of February 8, 1996, the number and
percentage of outstanding shares beneficially owned by each person known to
Antenna to own beneficially more than 5% of the outstanding shares of Antenna
Common Stock, by each director and named executive officer of Antenna, and by
all the directors and executive officers of Antenna as a group.
<TABLE>
Antenna Common
Stock
<CAPTION>
Name<F5> Number of Shares Percent
- ------------- ---------------- --------
<S> <C> <C>
Roger Fisher 2,500 27.7%
Bill Hamilton 500 5.5%
Kevin McAllister 552 6.13%
Tim McAllister 552 6.13%
Maura Binecki 3,792<F6> 42.1%
Paul McAllister 552 6.13%
Mary Rose Smith 552 6.13%
The McAllister Family Trust 3,240 36.0%
Angelo Bufalino 0 <F9>
Mary Kay McAllister 3,240<F7> 36.0%
John Keeley 0 <F9>
Eugene Maher 0 <F9>
Mark Meyer 0 <F9>
All current executive officers
and directors 6,240<F8> 69.3%
<FN>
<F5>
The address for each of Antenna's shareholders is c/o The Antenna Company,
1100 Maplewood Drive, Itasca, Illinois 60143.
<F6>
Includes 3,240 shares held by Mary Kay McAllister and Maura Binecki as
co-trustees of the McAllister Family Trust created under the Will of James I.
McAllister, dated February 10, 1991. Maura Binecki, Mary Rose Smith and Kevin,
Tim and Paul McAllister are beneficiaries under this Trust. Mary Kay McAllister
and Ms. Binecki share voting and investment power over the shares held by
the Trust.
<F7>
Includes 3,240 shares held by Mary Kay McAllister as co-trustee of the
McAllister Family Trust as set forth in the footnote above. Mary Kay
McAllister shares voting and investment power over the shares held by
the Trust. Mary Kay McAllister disclaims beneficial ownership in
those shares held by the Trust.
<F8>
Includes 3,240 shares held by Mary Kay McAllister as co-trustee of the
McAllister Family Trust as set forth in the footnote above. Mary Kay
McAllister shares voting and investment power over the shares held by
the Trust. Mary Kay McAllister disclaims beneficial ownership in
those shares held by the Trust.
<F9>
Less than 1%
</FN>
</TABLE>
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
OPERATIONS REVIEW
Nine Months Ended September 30, 1995 Compared to Nine Months Ended
September 30, 1994
Antenna's net sales consist of sales of antenna products, accessory product, and
foreign sales. Net sales increased 26% from $22.5 million to $28.4 million. The
growth is primarily due to the increase in sales in accessory products. Total
antenna product sales decreased 13.7% from $19.0 million, or 84.4% of net sales,
to $16.4 million, or 57.8% of net sales. This decrease is primarily due to a
slowing of the growth rate of the mobile telephone market and the well
publicized one time industry wide over supply of cellular phone inventory in the
first quarter of 1995. Total accessory product sales increased 710.0% from $1.0
million, or 4.5% of net sales, to $8.1 million, or 28.5% of net sales. This
increase is primarily due to a ramp-up of batteries, battery chargers, and
adapters which began to accelerate in May of 1995. Foreign sales increased 56.0%
from $2.5 million, or 11.1% of net sales, to $3.9 million, or 13.7% of net
sales.
Gross profit increased 22.4% from $8.5 million to $10.4 million, and, as a
percentage of net sales, decreased from 37.8% to 36.6%. This percentage
decrease in gross margin is primarily due to a change in the sales mix from
higher margin antenna products to a greater volume of slightly lower margin
accessory products.
Total operating expenses increased 28.8% from $5.9 million, with an operating
profit margin of 11.6%, to $7.6 million, with an operating profit margin of
9.9%.
Antenna's selling expenses primarily include employee costs, travel costs,
facilities expenses, and advertising. Selling expenses increased 23.1% from
$3.9 million, or 17.3% of net sales, to $4.8 million, or 16.9% of net sales.
The dollar increase was principally due to an increase in employee costs,
including sales commissions, in support of increased sales.
Antenna's research and development costs primarily include employee costs and
facilities expenses. Research and development costs increased 25.0% from
$0.8 million, or 3.6% of net sales, to $1.0 million, or 3.5% of net sales.
The dollar increase was principally due to an increase in employee costs.
Antenna's general and administrative expenses primarily include management
and accounting expenses. General and administrative expenses increased
30.8% from $1.3 million, or 5.8% of net sales, to $1.7 million, or 6.0% of
net sales. The dollar increase was principally due to an increase in employee
training costs and accounting expenses in support of increased sales.
Interest expense increased 50.0% from $0.2 million to $0.3 million. This
increase resulted from increased borrowings which were used to support
Antenna's increased sales.
<PAGE>
Fiscal Year Ended December 31, 1994 Compared to Fiscal Year Ended
December 31, 1993
Net sales increased 37.0% from $23.1 million to $31.7 million. The improvement
is primarily due to the increase of sales to Carriers. Total antenna product
sales increased 24.5% from $20.8 million, or 90.0% of net sales, to $25.9
million, or 82.0% of net sales. This increase is primarily due to the continued
increasing growth of the cellular mobile telephone market. Total accessory
product sales increased 110.0% from $1.0 million, or 4.3% of net sales, to $2.1
million, or 6.6% of net sales. This increase is primarily due to the
introduction of new accessories for portable telephone product lines. Foreign
sales increased 185.0% from $1.3 million, or 56% of net sales, to $3.7 million,
or 12.0% of net sales.
Gross profit increased 41.2% from $8.5 million to $12.0 million, and, as a
percentage of net sales, increased from 36.8% to 38.0%. This increase is gross
margin is primarily due to leveraging the fixed cost component of cost of goods
sold over the increased volume of sales.
Total operating expenses increased 45.6% from $5.7 million, with an operating
profit margin of 12.1%, to $8.3 million, with an operating profit margin of
11.7%.
Selling expenses increased 42.1% from $3.8 million, or 16.5% of net sales, to
$5.4 million, or 17.0% of net sales. The dollar increase was principally due
to an increase in employee costs, including sales commissions, in support of
increased sales.
Research and development costs increased 120.0% from $0.5 million, or 2.2% of
net sales, to $1.1 million, or 3.5% of net sales. The dollar increase was
principally due to an increase in engineering personnel and related expenses.
General and administrative expenses increased 38.5% from $1.3 million, or 5.6%
of net sales, to $1.8 million, or 5.7% of net sales. The dollar increase was
principally due to an increase in employee costs in support of increased sales.
Interest expense increased 50.0% from $0.2 million to $0.3 million. This
increase resulted from increased borrowings which were used to support Antenna's
increased sales.
<PAGE>
Fiscal Year Ended December 31, 1993 Compared to Fiscal Year Ended
December 31, 1992
Net sales increased 59.3% from $14.5 million to $23.1 million. The improvement
is primarily due to strong growth of the cellular mobile telephone market and
growth in Antenna's market shares. Total antenna product sales increased 57.6%
from $13.2 million, or 91.0% of net sales, to $20.8 million, or 90.0% of net
sales. This increase is primarily due to the expanding market and market shares
gains described above. Total accessory product sales increased 100.0% from $0.5
million, or 3.5% of net sales, to $1.0 million, or 4.3% of net sales. This
increase is primarily due to sales of new products. Foreign sales increased
62.5% from $0.8 million, or 5.5% of net sales, to $1.3 million, or 5.6% of net
sales.
Gross profit increased 30.8% from $6.5 million to $8.5 million, and, as a
percentage of net sales, decreased from 44.8% to 36.8%. This percentage
decrease was primarily the result of costs associated with Antenna's move to
a new manufacturing facility.
Total operating expenses increased 58.3% from $3.6 million, with an operating
profit margin of 20.0%, to $5.7 million, with an operating profit margin of
12.1%.
Selling expenses increased 52.0% from $2.5 million, or 17.2 % of net sales,
to $3.8 million, or 16.5% of net sales. The dollar increase was principally
due to an increase in employee costs, including sales commissions, in support
of increased sales.
Research and development costs increased 25.0% from $0.4 million, or 2.8% of
net sales, to $0.5 million, or 2.2% of net sales. The dollar increase was
principally due to an increase in costs associated with a new facility.
General and administrative expenses increased 62.5% from $0.8 million, or 5.5%
of net sales, to $1.3 million, or 5.6% of net sales. The dollar increase was
principally due to an increase in facilities costs and employee expenses, in
support of increased sales.
Interest expense for 1993 increased 22.2% from $0.18 million to $0.22 million.
This increase resulted from increased borrowings which were used to support
Antenna's increased sales.
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
At September 30, 1995, Antenna had $1.0 million of cash and $3.5 million of
available borrowings under its $6.0 million unsecured line of credit. At
September 30, 1994, Antenna had $0.5 million of cash. For the fiscal years
ended December 31, 1994, 1993, and 1992, Antenna had cash of $0.6 million,
$0.6 million and $0.2 million, respectively.
During the nine month period ended September 30, 1995, and the fiscal years
ended December 31, 1994, 1993 and 1992, net cash provided (used) by operating
activities was $2.5 million, $1.2 million, ($0.8 million), $0.3 million,
respectively.
Antenna's working capital increased from $3.0 million as of December 31, 1993,
to $7.0 million as of December 31, 1994. This increase was primarily
attributable to a higher sales volume resulting in an increase in accounts
receivable in 1994 compared to 1993. Antenna's working capital increased from
$5.5 million as of September 30, 1994 to $6.7 million as of September 30, 1995.
This increase was also primarily attributable to higher sales volume.
Capital expenditures were $0.8 million for the nine months ended September 30,
1995 as compared to $0.7 million for the nine months ended September 30, 1995.
Capital expenditures were $1.2 million and $1.2 million in 1994 and 1993,
respectively. Antenna anticipates that the funds available under Antenna's
line of credit will be adequate to satisfy Antenna's cash needs for the
foreseeable future.
RIGHTS OF ANDREW AND ANTENNA STOCKHOLDERS
DESCRIPTION OF ANDREW COMMON STOCK
Andrew has 100,000,000 authorized shares of Common Stock, $.01 par value, of
which 39,041,799 shares were issued and outstanding on February 7, 1996. The
Andrew Common Stock is listed and traded on the NNM under the symbol "ANDW."
<PAGE>
Each outstanding share of Andrew Common Stock is entitled to one vote. In all
matters other than the election of members of Andrew's Board of Directors and
certain fundamental transactions, stockholder action is approved by a majority
vote of the holders of Andrew Common Stock present in person or represented by
proxy at the meeting. See "-- Comparison of Rights of Andrew Stockholders and
Antenna Shareholders - Vote on Certain Fundamental Transactions" and "- Certain
Business Combinations." The members of Andrew's Board of Directors are elected
by a plurality vote of the holders of Andrew Common Stock present in person or
represented by proxy at the meeting. Andrew's Board is not classified and
Andrew's Certificate of Incorporation (the "Andrew Certificate") does not
provide for cumulative voting.
Holders of Andrew Common Stock are entitled to such dividends as the Board of
Directors may declare out of funds legally available therefor. It is the present
policy of Andrew's Board of Directors to retain earnings in the business to
finance Andrew's operations and investments, and Andrew does not anticipate
payment of cash dividends in the foreseeable future. Long-term debt agreements
include restrictive covenants which, among other things, provide restrictions on
dividend payments. At September 30, 1995, $201,097,000 was not restricted for
purposes of such payments.
Andrew has adopted a Rights Agreement that may discriminate against a
prospective holder of Andrew Common Stock as a result of such holder owning a
substantial amount of shares and may have the effect of delaying, deferring or
preventing a change in control of Andrew. See "-- Comparison of Rights of
Andrew Stockholders and Antenna Shareholders - Rights Plan."
DESCRIPTION OF ANTENNA COMMON STOCK
Antenna has 100,000 authorized shares of Common Stock, $.10 par value, of which
9,000 shares were issued and outstanding on February 9, 1996.
Each outstanding share of Antenna Common Stock is entitled to one vote. In all
matters other than certain fundamental transactions, stockholder action is
approved by a majority vote of the holders of Antenna Common Stock present in
person or represented by proxy at the meeting. See "-- Comparison of Rights of
Andrew Stockholders and Antenna Shareholders--Vote on Certain Fundamental
Transactions" and "- Certain Business Combinations." Antenna's Board is not
classified and Antenna's Articles of Incorporation (the "Antenna Articles")
provide for no cumulative voting.
Holders of Antenna Common Stock are entitled to such dividends as the Board of
Directors may declare out of funds legally available therefor. It is the
present policy of Antenna's Board of Directors to retain earnings in the
business to finance Antenna's operations and investments, and Antenna does not
anticipate payment of cash dividends in the foreseeable future.
COMPARISON OF RIGHTS OF ANDREW STOCKHOLDERS AND ANTENNA SHAREHOLDERS
Andrew is incorporated under the laws of the State of Delaware and Antenna is
incorporated under the laws of the State of Illinois. The rights of the holders
of Antenna Common Stock are currently governed by the IBCA, the Antenna Articles
and the Antenna By-laws (the "Antenna By-laws," together with the Antenna
Articles, the "Antenna Governing Documents"). If the Merger is consummated in
accordance with the terms of the Merger Agreement, Antenna shareholders will
become holders of Andrew Common Stock and their rights as such will be governed
by the Delaware General Corporation Law (the "DGCL"), the Andrew Certificate and
the Andrew By-laws (the "Andrew By-laws," together with the Andrew Certificate,
the "Andrew Governing Documents"). Certain of the material differences between
the rights of holders of Antenna Common Stock and the rights of holders of
Andrew Common Stock are summarized below.
<PAGE>
The following summary is not a complete statement of the rights of holders of
Andrew Common Stock under applicable Delaware laws or the Andrew Governing
Documents, or a comprehensive comparison with the rights of the holders of
Antenna Common Stock under applicable Illinois laws or the Antenna Governing
Documents, or a complete description of the specific provisions referred to
herein. The identification of specific differences is not meant to indicate that
other equally or more significant differences do not exist. This summary is
qualified in its entirety by reference to the DGCL, the IBCA, the Andrew
Governing Documents and the Antenna Governing Documents, to which holders of
Antenna Common Stock are referred. For information as to how such documents may
be obtained, see "Documents Incorporated by Reference."
Nomination and Election of Board of Directors.
- ---------------------------------------------
The DGCL is silent as to advance notice of director nominations.
The Andrew By-laws, however, require that notification and certain information
as to the nominated director be provided in advance to Andrew. The IBCA also is
silent as to advance notice of director nominations and the Antenna Governing
Documents do not contain a provision requiring such advance notification.
Pursuant to the DGCL and Andrew's Certificate, Andrew's directors are elected
by a plurality of the votes of the shares present in person or represented by
proxy at the meeting and entitled to vote for the election of directors. Under
the IBCA and the Antenna Governing Documents, the directors of Antenna are
elected pursuant to the vote of a majority of the shares present in person or
represented by proxy at a meeting of the Antenna shareholders.
Vote on Certain Fundamental Transactions.
- -----------------------------------------
The DGCL and the Andrew Governing Documents require that any merger,
consolidation, sale of all or substantially all of the assets, or dissolution of
a corporation be approved by the affirmative vote of the holders of a majority
of all outstanding shares of the corporation entitled to vote thereon.
But see "- Certain Business Combinations."
The IBCA and the Antenna Bylaws require that a plan of merger, consolidation,
exchange, sale of all or substantially all of Antenna's assets other than in the
ordinary course or dissolution be approved by at least two-thirds of the
outstanding shares entitled to vote thereon.
Special Meetings of Stockholders.
- ---------------------------------
Pursuant to the DGCL and the Andrew Certificate, special stockholder meetings
may only be called pursuant to a resolution adopted by a majority of Andrew's
Board of Directors. The IBCA permits, and the Antenna Governing Documents
provide, that special meetings of the shareholders may be called by the
president, the board of directors or the holders of not less than one-fifth of
all the outstanding shares entitled to vote on the matter for which the meeting
is called.
Stockholder Action by Written Consent.
- --------------------------------------
The DGCL generally allows for stockholder actions to be taken pursuant to a
written consent signed by stockholders having not less than the minimum number
of votes necessary to authorize or take such action, provided that a subsequent
notice of the taking of corporate action by less than unanimous written consent
is sent to stockholders who have not consented in writing. The Andrew
Certificate prohibits any action by written consent.
<PAGE>
The IBCA provisions are substantially similar to those of the DGCL in permitting
action by written consent, except that the IBCA requires certain prior and
subsequent notices be sent to shareholders if the consent is less than
unanimous. The Antenna Governing Documents allow the Antenna shareholders to
act pursuant to written consent.
Amendment of Certificate or Articles of Incorporation.
- ------------------------------------------------------
The DGCL and the Andrew Governing Documents allow Andrew to amend its
certificate of incorporation if the Andrew Board of Directors adopts a
resolution approving such an amendment, and the stockholders thereafter approve
the proposed amendment, either at a special meeting or at the next annual
stockholders meeting. In general, the proposed amendment must be approved at the
meeting by a majority of the outstanding stock entitled to vote thereon.
The IBCA and the Antenna Governing Documents contain provisions similar to the
DGCL and Andrew's Governing Documents regarding approval of amendments to
Antenna's Articles, except that the IBCA and the Antenna Governing Documents
provide that such amendments must be approved by at least two-thirds of the
outstanding shares entitled to vote thereon.
Liability and Indemnification of Directors and Officers.
- --------------------------------------------------------
The DGCL and the Andrew Certificate limit the liability of directors and provide
for the indemnification of directors, officers, employees and agents. In
addition, the Andrew Certificate provides that such indemnification rights are
contract rights and include the right to be paid by Andrew the expenses incurred
in defending the proceedings specified above in advance of their final
disposition, provided that if Delaware law so requires, such payment shall only
be made upon delivery to Andrew by the director or officer of an undertaking to
repay all amounts so advanced if it shall ultimately be determined that the
person receiving such payments is not entitled to be indemnified under the
Andrew Certificate or otherwise.
The provisions regarding limitation of director liability and indemnification
pursuant to the IBCA and the Antenna Governing Documents are substantially
similar to the DGCL and the Andrew Governing Documents, except that the Antenna
Governing Documents do not explicitly establish the indemnification rights as
contract rights. In addition, under the IBCA, the indemnifying corporation must
report any indemnification or advancement of expenses to its shareholders in
writing with or before the notice of the next shareholders meeting.
Payment of Dividends.
- ---------------------
The DGCL allows a corporation, subject to any restrictions contained in its
certificate of incorporation, to pay dividends out of its surplus or, in case
there is no surplus, out of net profits for the fiscal year in which declared or
out of net profits for the preceding fiscal year. The Andrew Certificate permits
the payment of dividends in accordance with the DGCL, but Andrew has not paid
any cash dividends on the Andrew Common Stock.
Under the IBCA, Antenna's Board of Director is authorized to make distributions
to the Antenna shareholders. No distribution may be made, however, if after
giving it effect, the corporation would be insolvent or the net assets of the
corporation would be less than zero or less than the maximum amount payable at
the time of distribution to shareholders having preferential liquidation rights
if the corporation were then to be liquidated. Antenna has never paid cash
dividends on the Antenna Common Stock.
<PAGE>
Appraisal or Dissenters' Rights.
- --------------------------------
The DGCL provides that stockholders of corporations being acquired pursuant to a
merger have the right to exercise certain "appraisal rights" to dissent from
such corporate action and to demand payment of the fair value of their shares.
Such appraisal rights may be exercised when the stockholders receive any form of
consideration for their shares other than (i) shares of stock of the surviving
corporation, (ii) shares of stock that are listed on a national securities
exchange, or designated as a national market system security on an interdealer
quotation system such as the NNM, or held of record by more than 2,000
shareholders, (iii) cash in lieu of fractional shares, or (iv) any combination
thereof. Corporations are allowed to enlarge these statutory rights pursuant to
their certificate of incorporation, but the Andrew Certificate does not expand
upon such rights.
The IBCA grants shareholders certain "dissenters' rights" in connection with
certain types of mergers, consolidations or share exchanges, in the case of a
sale, lease or exchange of all or substantially all the property and assets of a
corporation other than in the usual course of business, and in the case of any
amendment to a corporation's articles of incorporation that materially and
adversely affects the dissenters by abolishing a preferential right or right of
redemption. These dissenters' rights are substantially different from the
appraisal rights provided pursuant to the DGCL, and in certain respects are more
inclusive than the rights provided by the DGCL. See "The Merger -- Dissenters'
Rights."
Rights Plan.
- ------------
Andrew has adopted a rights plan, pursuant to which holders of Andrew Common
Stock receive one common stock purchase right ("Right") for each outstanding
share of Andrew Common Stock, with each Right entitling its holder to purchase
one share of Andrew Common Stock at an exercise price of $50 per share, subject
to certain adjustments. The Rights become exercisable if any person or entity
acquires 27% or more of the outstanding Andrew Common Stock, or commences a
tender or exchange offer that would cause the offeror to own 27% or more of the
outstanding Andrew Common Stock. Under certain circumstances involving an
attempted takeover of Andrew, holders of Rights would be entitled to purchase
shares of Andrew Common Stock or common stock of the acquiring person or entity
having a value equal to two times the exercise price of the Right. The Rights
are redeemable by Andrew at a price of $.01 per Right.
Antenna has not adopted any similar shareholder rights plan.
Certain Business Combinations.
- ------------------------------
The DGCL contains a "business combination" section applicable to certain
Delaware corporations such as Andrew that have a class of voting stock that is
(i) listed on a national securities exchange, (ii) authorized for quotation on
The NASDAQ Stock Market, or (iii) held of record by more than 2,000
stockholders. According to the DGCL, a corporation cannot engage in a
"business combination" with any "interested stockholder" for a period of three
years after the time such person became an "interested stockholder," unless
(i) the transaction is approved by the corporation's board of directors prior to
the time the "interested stockholder" obtained such status, (ii) upon
consummation of the transaction which resulted in the stockholder becoming an
"interested stockholder," the "interested stockholder" owned at least 85% of the
corporation's voting stock outstanding at the time the transaction commenced,
excluding shares owned by persons who are directors and also officers and shares
owned by certain employee stock plans, or (iii) at or subsequent to such time,
the "business combination" is approved by the corporation's board of directors
and authorized by the affirmative vote of at least 66 2/3% of the outstanding
voting stock which is not owned by the "interested stockholder." A "business
combination" includes mergers, consolidations, asset sales of a certain value
and other transactions resulting in financial benefit to a stockholder. An
"interested stockholder" is defined as a person who owns 15% or more of a
corporation's outstanding voting stock, or who is an affiliate or associate of
the corporation and was the owner of 15% or more of the outstanding voting stock
of the corporation at any time within the three-year period prior to the date of
determination, and the affiliates and associates of such person. The DGCL allows
Delaware corporations to elect not to be governed by these provisions. Andrew,
however, has not so elected, and is subject to the business combination section
of the DGCL.
<PAGE>
The IBCA also includes a business combination section that is substantially
similar to the DGCL provision summarized above. The IBCA's provision, however,
only applies to domestic corporations that have equity securities registered
under the Exchange Act, and which satisfy certain other requirements. Because
Antenna does not have any securities registered pursuant to the Exchange Act,
Antenna is not subject to the business combination provisions of the IBCA.
LEGAL MATTERS
The validity of the shares of Andrew Common Stock to be issued in connection
with the Merger will be passed upon for Andrew by Gardner, Carton & Douglas,
Chicago, Illinois. The firm and those attorneys participating in the preparation
of this Proxy Statement/Prospectus own 16,400 shares of Andrew Common Stock.
Certain of the tax consequences of the Merger to Antenna Shareholders are being
passed upon by McDermott, Will & Emery, special counsel to Antenna. See "The
Merger -- Certain Federal Income Tax Consequences."
EXPERTS
ANDREW
The consolidated financial statements and related schedule of Andrew
incorporated by reference in this Proxy Statement/Prospectus have been audited
by Ernst & Young LLP, independent auditors, to the extent indicated in their
reports incorporated by reference herein. Such consolidated financial statements
and related schedule have been incorporated herein by reference in reliance upon
such reports given upon the authority of such firm as experts in accounting and
auditing.
ANTENNA
The consolidated financial statements of Antenna have been audited by William J.
Barnes & Co., Ltd., independent public accountants, as indicated in their report
with respect thereto, and are included herein in reliance on the authority of
such firm as experts in accounting and auditing.
<PAGE>
INDEX TO ANTENNA CONSOLIDATED FINANCIAL STATEMENTS
Interim Unaudited Consolidated Statements:
Consolidated Balance Sheet -- September 30, 1995
Consolidated Statements of Income -- Three months ended September 30, 1995
and 1994; Nine months ended September 30, 1995 and 1994
Consolidated Statements of Cash Flows -- Nine months ended September 30,
1995 and 1994
Notes to Consolidated Financial Statements
Annual Audited Consolidated Statements:
Independent Auditor's Report
Consolidated Balance Sheets -- December 31, 1994 and 1993
Consolidated Statements of Income and Retained Earnings -- Years ended
December 31, 1994 and 1993
Consolidated Statements of Cash Flows -- Years ended December 31, 1994
and 1993
Notes to Consolidated Financial Statements
Independent Auditor's Report
Consolidated Balance Sheets -- December 31, 1993 and 1992
Consolidated Statements of Income and Retained Earnings -- Years ended
December 31, 1993 and 1992
Consolidated Statements of Cash Flows -- Years ended December 31, 1993
and 1992
Notes to Consolidated Financial Statements
<PAGE>
<TABLE>
THE ANTENNA COMPANY and SUBSIDIARIES
Consolidated Balance Sheet
<CAPTION>
September 30
1995
------------
(Unaudited)
<S> <C>
ASSETS
Current Assets
Cash $ 979,200
Accounts receivable 5,744,487
Inventory 4,949,470
Prepaid expenses 328,203
------------
Total current assets 12,001,360
------------
Fixed Assets
Furniture and fixtures 885,421
Equipment 2,579,080
Leasehold improvements 448,348
------------
Total fixed assets 3,912,849
Less: Accumulated depreciation (1,892,173)
------------
Fixed Assets, net 2,020,676
------------
Total Assets $ 14,022,036
============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Accounts payable $ 3,905,711
Current portion of long-term debt 255,986
Accrued payroll 513,213
Payroll taxes payable 7,759
Accrued interest 81,174
Accrued license fees 198,068
Income taxes payable 302,657
------------
Total current liabilities 5,264,568
------------
Non-Current Liabilities
Shareholder loans 500,000
Long-term debt 2,494,820
Deferred income taxes 25,000
------------
Total non-current liabilities 3,019,820
------------
Shareholders' Equity
Common stock - $0.10 par value; 100,000
shares authorized; 9,000 shares issued
and outstanding 900
Additional paid-in capital 9,950
Cumulative translation adjustments 22,659
Retained earnings 5,704,139
------------
Total shareholders' equity 5,737,648
------------
Total Liabilities and Shareholders' Equity $ 14,022,036
============
<FN>
See notes to unaudited consolidated financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
THE ANTENNA COMPANY and SUBSIDIARIES
Consolidated Statements of Income (Unaudited)
<CAPTION>
Three Months Ended Nine Months Ended
September 30 September 30
---------------------------- ----------------------------
1995 1994 1995 1994
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Sales $ 11,771,811 $ 8,006,459 $ 28,373,262 $ 22,546,010
Cost of Sales:
Materials 6,290,406 3,671,317 14,344,243 10,441,900
Labor and overhead 1,283,292 1,224,992 3,663,001 3,576,011
------------ ------------ ------------ ------------
Total cost of sales 7,573,698 4,896,309 18,007,244 14,017,911
------------ ------------ ------------ ------------
Gross Profit 4,198,113 3,110,150 10,366,018 8,528,099
Operating Expenses:
Selling expenses 1,678,539 1,416,652 4,829,286 3,868,257
Administrative expense 592,985 476,700 1,730,313 1,307,591
Research and development 266,312 304,089 1,020,035 753,042
------------ ------------ ------------ ------------
Total operating expenses 2,537,836 2,197,441 7,579,634 5,928,890
------------ ------------ ------------ ------------
Net Operating Income 1,660,277 912,709 2,786,384 2,599,209
Non-Operating (Income) Expense:
License and royalty fees 73,245 95,218 213,492 277,253
Interest expense 82,002 75,258 294,949 238,614
Other non-operating (16,787) (42,703) (177,769) (81,625)
------------ ------------ ------------ ------------
Total non-operating
expense, net 138,460 127,773 330,672 434,242
------------ ------------ ------------ ------------
Net Income Before
Income Taxes 1,521,817 784,936 2,455,712 2,164,967
Provision for Income Taxes 705,385 411,325 1,105,562 886,825
------------ ------------ ------------ ------------
Net Income $ 816,432 $ 373,611 $ 1,350,150 $ 1,278,142
============ ============ ============ ============
<FN>
See notes to unaudited consolidated financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
THE ANTENNA COMPANY and SUBSIDIARIES
Consolidated Statements of Cash Flows (Unaudited)
<CAPTION>
Nine Months Ended
September 30
1995 1994
----------- -----------
<S> <C> <C>
Cash Flows From Operating Activities:
Net income $ 1,350,150 $ 1,278,142
Reconciling adjustments-
Depreciation and amortization 598,502 381,917
(Increase) decrease in assets-
Accounts receivable (1,672,784) 188,021
Inventory 397,789 (311,098)
Prepaid expenses (18,586) 203,337
Increase (decrease) in liabilities-
Accounts payable 1,345,304 (767,957)
Income tax payable 195,127 263,590
Accrued expenses 341,820 478,953
----------- -----------
1,187,172 436,763
----------- -----------
Net cash provided by operating
activities 2,537,322 1,714,905
Cash Flows From Investing Activities:
Purchase of equipment (775,779) (705,478)
Cash Flows From Financing Activities:
Net payments on long-term debt (420,538) (1,028,119)
Net payments on shareholder loan (967,099) (125,000)
----------- -----------
Net cash used in Financing Activities (1,387,637) (1,153,119)
Effect of Exchange Rates on Cash Flow (8,400) 13,010
----------- -----------
Net Increase (decrease) in Cash 365,506 (130,682)
Cash - beginning of period 613,694 577,541
----------- -----------
Cash - end of year period $ 979,200 $ 446,859
=========== ===========
<FN>
See notes to unaudited consolidated financial statements.
</FN>
</TABLE>
<PAGE>
THE ANTENNA COMPANY and SUBSIDIARIES
Notes to Consolidated Financial Statements
NOTE A - BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial information. Accordingly, they do not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three and nine month periods ending
September 30, 1995 are not necessarily indicative of the results that may be
expected for the year ending December 31, 1995. For further information, refer
to the consolidated financial statements and footnotes included herein for the
year ended December 31, 1994.
NOTE B - SUBSEQUENT EVENT
On January 25, 1996 the company signed a definitive agreement to be acquired by
Andrew Corporation. The transaction will be accounted for as a pooling of
interests. Andrew will exchange shares of its common stock for all the
outstanding stock of The Antenna Company.
<PAGE>
WILLIAM J. BARNES & CO., LTD.
CERTIFIED PUBLIC ACCOUNTANTS
1655 NORTH ARLINGTON HEIGHTS ROAD
SUITE 305E
ARLINGTON HEIGHTS, ILLINOIS 60004
(708) 506-1070
February 17, 1995
Board of Directors
The Antenna Company and Subsidiaries
1100 Maplewood Drive
Itasca, Illinois 60143
Independent Auditor's Report
Directors:
We have audited the accompanying consolidated balance sheets of The Antenna
Company and Subsidiaries as of December 31, 1994 and 1993 and the related
consolidated statements of income, retained earnings and cash flows for the
years then ended. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of The Antenna
Company and Subsidiaries as of December 31, 1994 and 1993, and the consolidated
results of its operations and its cash flows for the years then ended in
conformity with generally accepted accounting principles.
Respectfully submitted,
/s/ William J. Barnes & Co., LTD.
Certified Public Accountants
<PAGE>
<TABLE>
THE ANTENNA COMPANY and SUBSIDIARIES
Consolidated Balance Sheets
December 31, 1994 and 1993
<CAPTION>
1994 1993
------------ ------------
<S> <C> <C>
ASSETS
Current Assets
Cash $ 613,694 $ 577,541
Accounts receivable 4,070,103 3,789,894
Inventory 5,347,259 4,132,945
Prepaid expenses 311,217 199,951
Prepaid income taxes -- 119,835
------------ ------------
Total current assets 10,342,273 8,820,166
------------ ------------
Fixed Assets
Furniture and fixtures 783,993 438,625
Equipment 1,923,678 1,163,569
Leasehold improvements 429,399 366,261
------------ ------------
Total fixed assets 3,137,070 1,968,455
Less: Accumulated depreciation (1,293,671) (666,749)
------------ ------------
Fixed Assets, net 1,843,399 1,301,706
------------ ------------
Total Assets $ 12,185,672 $ 10,121,872
============ ============
<FN>
The accompanying notes are an integral part of and should be read in conjunction
with the financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
THE ANTENNA COMPANY and SUBSIDIARIES
Consolidated Balance Sheets
December 31, 1994 and 1993
<CAPTION>
1994 1993
----------- -----------
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Accounts payable $ 2,560,407 $ 2,767,977
Current portion of long-term debt 146,719 2,791,892
Accrued payroll 356,095 110,563
Payroll taxes payable 2,317 9,708
Accrued interest 40,405 38,209
Accrued license fees 59,576 48,263
Income taxes payable 115,530 --
----------- -----------
Total current liabilities 3,281,049 5,766,612
----------- -----------
Non-Current Liabilities
Shareholder loans 1,467,099 1,667,099
Long-term debt 3,024,626 190,937
Deferred income taxes 17,000 25,000
----------- -----------
Total non-current liabilities 4,508,725 1,883,036
----------- -----------
Shareholders' Equity
Common stock - $0.10 par value; 100,000
shares authorized; 9,000 shares issued
and outstanding 900 900
Additional paid-in capital 9,950 9,950
Cumulative translation adjustments 31,059 42,319
Retained earnings 4,353,989 2,419,055
----------- -----------
Total shareholders' equity 4,395,898 2,472,224
----------- -----------
Total Liabilities and Shareholders' Equity $12,185,672 $10,121,872
=========== ===========
<FN>
The accompanying notes are an integral part of and should be read in conjunction
with the financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
THE ANTENNA COMPANY and SUBSIDIARIES
Consolidated Statements of Income and Retained Earnings
For the Years Ended December 31, 1994 and 1993
<CAPTION>
1994 1993
------------ ------------
<S> <C> <C>
Sales $ 31,672,064 $ 23,122,198
------------ ------------
Cost of Sales:
Materials 14,822,573 10,985,282
Labor and overhead 4,820,357 3,629,836
------------ ------------
Total cost of sales 19,642,930 14,615,118
------------ ------------
Gross Profit 12,029,134 8,507,080
------------ ------------
Operating Expenses:
Selling expenses 5,417,510 3,834,587
Administrative expense 1,833,740 1,318,700
Research and development 1,086,436 538,989
------------ ------------
Total operating expenses 8,337,686 5,692,276
------------ ------------
Net Operating Income 3,691,448 2,814,804
------------ ------------
Non-Operating (Income) Expense:
License and royalty fees 340,446 284,926
Interest expense 306,982 219,463
Other non-operating (47,586) 301,106
------------ ------------
Total non-operating expense, net 599,842 805,495
------------ ------------
Net Income Before Income Taxes 3,091,606 2,009,309
Provision for Income Taxes 1,164,672 742,000
Deferred Income Tax (Reduction) (8,000) (3,000)
------------ ------------
Net Income 1,934,934 1,270,309
Retained Earnings - January 1 2,419,055 1,148,746
------------ ------------
Retained Earnings - December 31 $ 4,353,989 $ 2,419,055
============ ============
<FN>
The accompanying notes are an integral part of and should be read in conjunction
with the financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
THE ANTENNA COMPANY and SUBSIDIARIES
Consolidated Statements of Cash Flows
For the Years Ended December 31, 1994 and 1993
<CAPTION>
1994 1993
----------- -----------
<S> <C> <C>
Cash Flows From Operating Activities:
Net income $ 1,934,934 $ 1,270,309
----------- -----------
Reconciling adjustments-
Depreciation and amortization 626,752 419,079
(Gain) loss on disposition of assets -- 100,756
Deferred income taxes (8,000) (3,000)
(Increase) decrease in assets-
Accounts receivable (280,209) (912,155)
Inventory (1,214,314) (2,048,328)
Prepaid expenses (111,266) (22,289)
Prepaid income taxes 119,835 (119,835)
Increase (decrease) in liabilities-
Accounts payable (207,570) 1,179,051
Income tax payable 115,530 (573,225)
Accrued payroll and payroll taxes 238,141 (125,122)
Accrued interest on loans 2,196 2,790
Accrued license fees 11,313 13,296
----------- -----------
Total adjustments (707,592) (2,088,982)
----------- -----------
Net cash provided (used) by operating
activities 1,227,342 (818,673)
Cash Flows From Investing Activities:
Purchase of equipment (1,168,445) (1,180,298)
Cash Flows From Financing Activities:
Net proceeds (payments of) debt (11,484) 2,352,977
Effect of Exchange Rates on Cash Flow (11,260) 5,050
----------- -----------
Net Increase in Cash 36,153 359,056
Cash - beginning of year 577,541 218,485
----------- -----------
Cash - end of year $ 613,694 $ 577,541
=========== ===========
Supplemental Disclosure of Cash Flow
Information:
Cash Paid During the Year for:
Interest $ 304,786 $ 216,673
Income taxes $ 929,307 $ 1,435,060
<FN>
The accompanying notes are an integral part of and should be read in conjunction
with the financial statements.
</FN>
</TABLE>
<PAGE>
THE ANTENNA COMPANY and SUBSIDIARIES
Notes to Financial Statements
December 31, 1994
Note A - Accounting Policies
1. Organization
The Antenna Company was organized as a corporation March 3,
1987 for the purpose of developing, assembling and selling
cellular phone antennas.
2. Accounts Receivable
The Company does not make a provision for uncollectible
accounts. The direct charge-off method is used when an account is
determined to be uncollectible. The management is of the opinion
that the accounts are substantially all collectible.
3. Inventory
Inventories are stated at the lower of cost or market using
the weighted average method. Inventories are classified as
follows:
1994 1993
----------- -----------
Raw materials $ 1,224,374 $ 1,694,379
Work-in-process 1,313,560 585,382
Finished goods 2,809,325 1,853,184
----------- -----------
$5,347,259 $ 4,132,945
----------- -----------
4. Equipment and Depreciation
Equipment purchases are recorded at cost at the time of
acquisition. For financial reporting purposes, depreciation is
computed on the straight-line method over a useful life of 3 to 10
years, with the exception that depreciation of manufacturing
equipment and tooling items purchased after 1991 is computed on
the double-declining balance method. Depreciation for the year
amounted to $626,752.
5. Consolidation
The Company has foreign subsidiaries located in London,
England and Toronto, Canada which are in the business of marketing
and selling the Company's products. The financial results of the
Company and its subsidiaries have been presented on a consolidated
basis after elimination of intercompany balances and transactions.
6. Translation of Foreign Currencies
Foreign currency translation adjustments have been excluded
from the consolidated Statements of Income and are recorded in a
cumulative translation adjustment account as a separate component
of shareholders' equity.
<PAGE>
THE ANTENNA COMPANY and SUBSIDIARIES
Notes to Financial Statements
December 31, 1994
Note B - Long-Term Debt
<TABLE>
<CAPTION>
Long-term debt consisted of the following at December 31:
1994 1993
---------- ----------
<S> <C> <C>
Revolving line of credit providing borrowings up to
$5,000,000 and $3,000,000 at December 31, 1994 and 1993
respectively, collateralized by a continuing security
agreement in all of its accounts receivable, inventory and
equipment, interest is payable monthly at the prime rate.
The maturity date for the year ending December 31, 1994 is
May 15, 1996 and, the maturity date for the year ending
December 31, 1993 was May 15, 1994. Because the borrowing
base on the line of credit fluctuates as a function of
eligible accounts receivable and inventory, portions of the
line of credit may become currently due as
these items fluctuate. $2,800,000 $2,700,000
Installment loan payable, collaterized by a continuing
security agreement in all of its accounts receivable,
inventory and equipment, payable in monthly installments of
$7,222 plus interest at 7% with the final installment of
principal and interest due on
December 1, 1996. 166,113 260,000
Term loan payable, collateralized by a continuing security
agreement in all of its accounts receivable, inventory and
equipment, in monthly installments of $2,500 plus interest
at the prime rate with the final unpaid balance of principal
and interest due on May 15, 1996. 145,000 ---
Lease payable, secured by office
equipment, interest at 11.26% pay-
able in monthly installments of
$378 including interest. 3,590 7,477
Lease payable, secured by office
equipment, interest at 7.9%, pay-
able in monthly installments of
$439 including interest. 10,088 15,352
</TABLE>
<PAGE>
THE ANTENNA COMPANY and SUBSIDIARIES
Notes to Financial Statements
December 31, 1994
<TABLE>
<CAPTION>
Note B - Long-Term Debt (continued)
1994 1993
---------- ----------
<S> <C> <C>
Lease payable, secured by office
equipment, interest at 8%, payable
in monthly installments of $85
including interest. 2,087 ---
Lease payable, secured by office
equipment, interest at 8%, payable
in monthly installments of $292
including interest. 10,223 ---
Lease payable, secured by office
equipment, interest at 7.32%, pay-
able in monthly installments of
$1,390 including interest. 28,533 ---
Lease payable, secured by office
equipment, interest at 7%, payable
in monthly installments of $210
including interest. 5,711 ---
---------- ----------
3,171,345 2,982,829
Less - current maturities 146,719 2,791,892
---------- ----------
$3,024,626 $ 190,937
========== ==========
The current maturities of long-term debt for each of the
next five years are payable as follows:
Year ending December 31, 1995 $ 146,719
1996 3,018,733
1997 4,744
1998 1,149
1999 ---
----------
$3,171,345
==========
</TABLE>
Note C - Shareholder Loans
Shareholder loans amounted to $1,467,099 and $1,667,099 at
December 31, 1994 and 1993 respectively. There are currently no
agreements for repayment of these loans. Accrued interest payable
in the amounts of $28,696 and $31,734 was due to shareholders as
of December 31, 1994 and 1993 respectively. As of December 31,
1994, interest is payable at the prime rate. The shareholder loans
are subordinated to bank loans.
<PAGE>
THE ANTENNA COMPANY and SUBSIDIARIES
Notes to Financial Statements
December 31, 1994
Note D - Related Party Transactions
At December 31, 1994 and 1993, the accounts payable include
a balance due to related parties in the amounts of $19,005 and
$40,620 respectively. Operations for the years include expenses
incurred with related parties totaling $282,248 and $611,041 in
1994 and 1993 respectively. Related party transactions consisted
primarily of the purchase of printing services. Other related
party transactions are described in Note C above.
Note E - License Agreement
During 1990, the Company entered into a nonexclusive license
agreement with Orion Industries, Inc. allowing the Company to
produce and sell patented glass-mounted mobile antenna assemblies.
The license provides for a minimum annual royalty payable in
advance. At the end of each royalty year a computation is made,
based on unit sales of the licensed product by the Company to
determine the amount payable, if any, in excess of the minimum
royalty. The minimum prepayment schedule is $8,333.30 per month
for the period December 15, 1991 through November 15, 1995, a
total of $400,000.00.
Upon final settlement of the royalty year ended November 15,
1995, the Company will have a fully paid license.
Note F - Income Taxes
The Company had a current income tax liability of $115,530
at December 31, 1994 and a prepaid balance of $119,835 at December
31, 1993. Deferred taxes which arose as a result of using
accelerated methods of depreciation for income tax purposes
amounted to $17,000 and $25,000 at December 31, 1994 and 1993
respectively.
The income tax provision for 1994 reflected in the
consolidated statement of income differs from the expected Federal
income tax using the statutory rate of 34% as shown in the
following table:
Computed tax at 34% $ 1,051,000
Effect of international subsidiary's
earnings not currently taxable (53,000)
State income tax, net of Federal
income tax benefit 132,000
Other 26,672
-----------
Tax provision per financial statements $ 1,156,672
===========
<PAGE>
THE ANTENNA COMPANY and SUBSIDIARIES
Notes to Financial Statements
December 31, 1994
Note G - Building Lease
The Company has a five year lease agreement on its facility
which expires September 30, 1998 with an option available to renew
for an additional five years.
In addition to the base rent listed below, the Company pays
a monthly "rent adjustment" to cover taxes and building expenses
as defined in the lease. The current monthly rent adjustment at
December 31, 1994 is $9,962. The liability for future payments of
the base rent is as follows:
1995 390,906
1996 410,110
1997 418,312
1998 318,416
-----------
$ 1,537,744
===========
Note H - Employee Benefit Plan
The Company adopted a 401k Deferred Profit Sharing Plan
effective September 1, 1993. Eligible employee contributions to
the plan are matched by the Company up to 6% of the participant's
compensation.
Note I - Contingent Liabilities
The Company is currently a party to a legal proceeding and
also is subject to a threatened proceeding. Management is of the
opinion that these proceedings have little merit and, accordingly,
will not have a material adverse effect on the financial position
or results of operations of the Company.
<PAGE>
WILLIAM J. BARNES & CO., LTD.
CERTIFIED PUBLIC ACCOUNTANTS
1655 NORTH ARLINGTON HEIGHTS ROAD
SUITE 305E
ARLINGTON HEIGHTS, ILLINOIS 60004
(708) 506-1070
April 20, 1994
Board of Directors
The Antenna Company and Subsidiary
1100 Maplewood Drive
Itasca, Illinois 60143
Independent Auditor's Report
Directors:
We have audited the accompanying consolidated balance sheets of The Antenna
Company and Subsidiary as of December 31, 1993 and 1992 and the related
consolidated statements of income, retained earnings and cash flows for the
years then ended. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of The Antenna
Company and Subsidiary as of December 31, 1993 and 1992, and the consolidated
results of its operations and its cash flows for the years then ended in
conformity with generally accepted accounting principles.
Respectfully submitted,
/s/ William J. Barnes & Co., LTD
Certified Public Accountants
<PAGE>
<TABLE>
THE ANTENNA COMPANY and SUBSIDIARY
Consolidated Balance Sheets
December 31, 1993 and 1992
<CAPTION>
1993 1992
------------ ------------
<S> <C> <C>
ASSETS
Current Assets
Cash $ 577,541 $ 218,485
Accounts receivable 3,789,894 2,877,739
Inventory 4,132,945 2,084,617
Prepaid expenses 199,951 177,662
Prepaid income taxes 119,835 --
------------ ------------
Total current assets 8,820,166 5,358,503
------------ ------------
Fixed Assets
Furniture and fixtures 438,625 144,858
Equipment 1,163,569 811,882
Leasehold improvements 366,261 --
------------ ------------
Total fixed assets 1,968,455 956,740
Less: Accumulated depreciation (666,749) (338,829)
------------ ------------
Fixed Assets, net 1,301,706 617,911
------------ ------------
Other Assets
Patent 175,000 175,000
Less: Accumulated amortization (175,000) (151,667)
------------ ------------
Total Other Assets -- 23,333
------------ ------------
Total Assets $ 10,121,872 $ 5,999,747
============ ============
<FN>
The accompanying notes are an integral part of and should be read in conjunction
with the financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
THE ANTENNA COMPANY and SUBSIDIARY
Consolidated Balance Sheets
December 31, 1993 and 1992
<CAPTION>
1993 1992
----------- -----------
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Accounts payable $ 2,767,977 $ 1,588,926
Notes payable - bank 2,700,000 600,000
Current portion of installment loans 91,892 29,852
Accrued payroll 110,563 230,270
Payroll taxes payable 9,708 15,123
Accrued interest 38,209 35,419
Accrued license fees 48,263 34,967
Income taxes payable -- 573,225
----------- -----------
Total current liabilities 5,766,612 3,107,782
----------- -----------
Non-Current Liabilities
Shareholder loans 1,667,099 1,667,099
Installment loans 190,937 --
Deferred income taxes 25,000 28,000
----------- -----------
Total non-current liabilities 1,883,036 1,695,099
----------- -----------
Shareholders' Equity
Common stock - $0.10 par value; 100,000
shares authorized; 9,000 shares issued
and outstanding 900 900
Additional paid-in capital 9,950 9,950
Cumulative translation adjustments 42,319 37,270
Retained earnings 2,419,055 1,148,746
----------- -----------
Total shareholders' equity 2,472,224 1,196,866
----------- -----------
Total Liabilities and Shareholders' Equity $10,121,872 $ 5,999,747
=========== ===========
<FN>
The accompanying notes are an integral part of and should be read in conjunction
with the financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
THE ANTENNA COMPANY and SUBSIDIARY
Consolidated Statements of Income and Retained Earnings
For the Years Ended December 31, 1993 and 1992
<CAPTION>
1993 1992
------------ ------------
<S> <C> <C>
Sales $ 23,122,198 $ 14,484,339
------------ ------------
Cost of Sales:
Materials 10,985,282 6,517,141
Labor and overhead 3,629,836 1,457,992
------------ ------------
Total cost of sales 14,615,118 7,975,133
------------ ------------
Gross Profit 8,507,080 6,509,206
------------ ------------
Operating Expenses:
Selling expenses 3,834,587 2,459,833
Administrative expense 1,318,700 771,995
Research and development 538,989 379,453
------------ ------------
Total operating expenses 5,692,276 3,611,281
------------ ------------
Net Operating Income 2,814,804 2,897,925
Non-Operating (Income) Expense:
License and royalty fees 284,926 214,133
Interest expense 219,463 179,747
Other non-operating 301,106 115,242
------------ ------------
Net Income Before Income Taxes 2,009,309 2,388,803
Provision for Income Taxes 742,000 917,993
Deferred Income Tax (Benefit) (3,000) 28,000
------------ ------------
Net Income 1,270,309 1,442,810
Retained Earnings (Deficit) - January 1 1,148,746 (294,064)
------------ ------------
Retained Earnings - December 31 $ 2,419,055 $ 1,148,746
============ ============
<FN>
The accompanying notes are an integral part of and should be read in conjunction
with the financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
THE ANTENNA COMPANY and SUBSIDIARY
Consolidated Statements of Cash Flows
For the Years Ended December 31, 1993 and 1992
<CAPTION>
1993 1992
----------- -----------
<S> <C> <C>
Cash Flows From Operating Activities:
Net income (loss) $ 1,270,309 $ 1,442,810
----------- -----------
Reconciling adjustments-
Depreciation and amortization 419,079 217,490
(Gain) loss on disposition of assets 100,756 5,297
Deferred income taxes (3,000) 28,000
(Increase) decrease in assets-
Accounts receivable (912,155) (1,897,862)
Inventory (2,048,328) (1,223,756)
Prepaid expenses (22,289) (104,717)
Prepaid income taxes (119,835) --
Increase (decrease) in liabilities-
Accounts payable 1,179,051 1,199,238
Income tax payable (573,225) 562,225
Accrued payroll and payroll taxes (125,122) 184,344
Accrued interest on loans 2,790 (116,794)
Accrued license fees 13,296 16,301
----------- -----------
Total adjustments (2,088,982) (1,130,234)
----------- -----------
Net cash provided (used) by operating
activities (818,673) 312,576
----------- -----------
Cash Flows From Investing Activities:
Purchase of equipment (1,180,298) (559,616)
----------- -----------
Cash Flows From Financing Activities:
Net proceeds of installment loans 252,977 18,245
Net proceeds on bank loan 2,100,000 200,000
----------- -----------
Net cash provided by financing activities 2,352,977 218,245
----------- -----------
Effect of Exchange Rates on Cash Flow 5,050 49,522
----------- -----------
Net Increase in Cash 359,056 20,727
Cash - beginning of year 218,485 197,758
----------- -----------
Cash - end of year $ 577,541 $ 218,485
=========== ===========
Supplemental Disclosure of Cash Flow
Information:
Cash Paid During the Year for:
Interest $ 216,673 $ 296,541
Income taxes $ 1,435,060 $ 349,557
<FN>
The accompanying notes are an integral part of and should be read in conjunction
with the financial statements.
</FN>
</TABLE>
<PAGE>
THE ANTENNA COMPANY and SUBSIDIARY
Notes to Financial Statements
December 31, 1993
Note A - Accounting Policies
1. Organization
The Antenna Company was organized as a corporation March 3,
1987 for the purpose of developing, assembling and selling
cellular phone antennas.
2. Accounts Receivable
The Company does not make a provision for uncollectible
accounts. The direct charge-off method is used when an account is
determined to be uncollectible. The management is of the opinion
that the accounts are substantially all collectible.
3. Inventory
Inventories are stated at the lower of cost or market using
the weighted average method. Inventories are classified as
follows:
1993 1992
----------- -----------
Raw materials $ 1,694,379 $ 1,017,700
Work-in-process 585,382 460,557
Finished goods 1,853,184 606,360
----------- -----------
$ 4,132,945 $ 2,084,617
----------- -----------
4. Equipment and Depreciation
Equipment purchases are recorded at cost at the time of
acquisition. For financial reporting purposes, depreciation is
computed on the straight-line method over a useful life of 3 to 10
years, with the exception that depreciation of manufacturing
equipment and tooling items purchased after 1991 is computed on
the double-declining balance method. Depreciation for the year
amounted to $395,746.
5. Patent
During the year 1988, the Company acquired a patent for an
antenna system. The cost of this patent is being amortized on the
straight-line basis over a useful life of five years for both
financial and tax purposes. Amortization amounted to $23,333 for
the year. The patent became fully amortized during 1993. The
patent is in effect through May 15, 1995.
6. Consolidation
During 1990, the Company formed a foreign subsidiary, The
Antenna Company International, Ltd., based near London, England.
The foreign subsidiary, which is 98% owned by the Company, is in
the business of marketing and selling the Company's products in
Europe. The financial results of the Company and the subsidiary
have been presented on a consolidated basis after elimination of
intercompany balances and transactions.
<PAGE>
THE ANTENNA COMPANY and SUBSIDIARY
Notes to Financial Statements
December 31, 1993
Note A - Accounting Policies (continued)
Translation of Foreign Currencies
Foreign currency translation adjustments have been excluded
from the Consolidated Statements of Income and are recorded in a
cumulative translation adjustment account as a separate component
of shareholders' equity.
Note B - Notes Payable - Bank
The Company has a line of credit up to $3,000,000 with the
LaSalle National Bank of Chicago. The Company has given the bank a
continuing security interest in all of its property as collateral
for this loan. The balance due on advances on the line of credit
amounted to $2,700,000 and $600,000 at December 31, 1993 and 1992
respectively. Interest is payable monthly at the rate of prime +
1/2%. The line of credit matures May 15, 1994 and the balance
available decreases to $2,000,000 on February 28, 1994.
Note C - Shareholder Loans
Long-term debt is composed of shareholder loans for which
there are currently no agreements for repayment. Interest was
accrued during the year at the prime rate of interest plus 3%.
Accrued interest payable in the amounts of $31,734 and $33,008 was
due to shareholders as of December 31, 1993 and 1992 respectively.
The shareholder loans are subordinated to bank loans.
Note D - Installment Loans
The Company has a $260,000 installment loan with the LaSalle
National Bank of Chicago payable in 36 monthly installments of
$7,222 plus interest at the rate of 7%, with the final unpaid
balance due in December, 1996. This loan is covered by the
security agreement given in connection with the line of credit
discussed in Note B. The loan balance at December 31, 1993 was
$260,000. The Company also is making monthly installment payments
on two capitalized leases for office equipment having a balance of
$22,829 as of December 31, 1993. Final payments on these leases
are due in 1995 and 1996.
<PAGE>
THE ANTENNA COMPANY and SUBSIDIARY
Notes to Financial Statements
December 31, 1993
Note E - Related Party Transactions
At December 31, 1993 and 1992, the accounts payable include
a balance due to related parties in the amounts of $40,620 and
$50,583 respectively. Operations for the years include expenses
incurred with related parties totaling $611,041 and $495,056 in
1993 and 1992 respectively. Related party transactions consisted
primarily of building rent (at former location), freight
reimbursements and payments on a previously shared phone system.
Other related party transactions are described in Note C above.
Note F - License Agreement
During 1990, the Company entered into a nonexclusive license
agreement with Orion Industries, Inc. allowing the Company to
produce and sell patented glass-mounted mobile antenna assemblies.
The license provides for a minimum annual royalty payable in
advance. At the end of each royalty year a computation is made,
based on unit sales of the licensed product by the Company to
determine the amount payable, if any, in excess of the minimum
royalty. The minimum prepayment schedule is $8,333.30 per month
for the period December 15, 1991 through November 15, 1995, a
total of $400,000.00.
Upon final settlement of the royalty year ended November 15,
1995, the Company will have a fully paid license.
Note G - Income Taxes
Income taxes are prepaid in the amount of $119,835 as of
December 31, 1993. The Company had an income tax liability of
$573,225 at December 31, 1992. Deferred taxes which arose as a
result of using accelerated methods of depreciation for income tax
purposes amounted to $25,000 and $28,000 at December 31, 1993 and
1992 respectively.
The income tax provision for 1993 reflected in the
consolidated statement of income differs from the expected Federal
income tax using the statutory rate of 34% as shown in the
following table:
Computed tax at 34% $ 683,000
Effect of international subsidiary's
earnings not currently taxable (18,000)
State income tax, net of Federal
income tax benefit 92,400
Other (18,400)
---------
Tax provision per financial statements $ 739,000
=========
<PAGE>
THE ANTENNA COMPANY and SUBSIDIARY
Notes to Financial Statements
December 31, 1993
Note H - Building Lease
The Company has a five year lease agreement on its facility
which expires September 30, 1998 with an option available to renew
for an additional five years.
In addition to the base rent listed below, the Company pays
a monthly "rent adjustment" to cover taxes and building expenses
as defined in the lease. The current monthly rent adjustment at
December 31, 1993 is $6,474. The liability for future payments of
the base rent is as follows:
1994 $ 350,192
1995 390,906
1996 410,110
1997 418,312
1998 318,416
-----------
$ 1,887,936
===========
Note I - Employee Benefit Plan
The Company adopted a 401k Deferred Profit Sharing Plan
effective September 1, 1993. Eligible employee contributions to
the plan are matched by the Company up to 6% of the participant's
compensation.
Note J - Other Non-Operating Expense
Other non-operating expense in 1993 includes charges of
$227,000 representing disposal of plant assets in connection with
relocation of the Company and acquisition of new equipment.
<PAGE>
APPENDIX A
AGREEMENT AND PLAN OF MERGER
between
ANDREW CORPORATION
and
THE ANTENNA COMPANY
-----------------
Dated January 25, 1996
-----------------
<PAGE>
TABLE OF CONTENTS
AGREEMENT AND PLAN OF MERGER
ARTICLE I. THE MERGER............................................1
1.1. The Merger..............................................1
1.2. Closing.................................................1
1.3. Effective Time..........................................1
1.4. Effects of the Merger...................................1
1.5. Certificate of Incorporation and By-Laws................1
1.6. Directors and Officers..................................2
1.7. Andrew Common Stock.....................................2
1.8. Tax Consequences........................................2
ARTICLE II. CONVERSION AND EXCHANGE OF SHARES.....................2
2.1. Conversion of Antenna Common Stock......................2
2.2. Exchange of Shares......................................3
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF ANTENNA.............4
3.1. Corporate Organization..................................4
3.2. Capitalization..........................................4
3.3. Authority; No Violation.................................5
3.4. Consents and Approvals..................................5
3.5. Reports.................................................6
3.6. Compliance with Applicable Law..........................6
3.7. Financial Statements....................................6
3.8. Absence of Certain Changes or Events....................6
3.9. Legal Proceedings and Restrictions......................7
3.10. Taxes and Tax Returns...................................7
3.11. Employee Benefits.......................................9
3.12. Employment and Labor Relations.........................11
3.13. Contracts..............................................11
3.14. Undisclosed Liabilities................................13
3.15. Environmental Liability................................13
3.16. Tangible Assets........................................14
3.17. Real Property..........................................14
3.18. Intellectual Property..................................14
3.19. Inventory..............................................15
3.20. Notes and Accounts Receivable..........................16
3.21. Bank Accounts and Powers of Attorney...................16
3.22. Guaranties.............................................16
3.23. Insurance..............................................16
3.24. Service Contracts and Warranties.......................16
3.25. Certain Relationships..................................16
3.26. S-4 Information........................................16
3.27. Broker's Fees..........................................17
3.28. Pooling of Interests...................................17
3.29. Certain Customer Relationships.........................17
3.30. Disclosure.............................................17
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF ANDREW.............17
4.1. Corporate Organization.................................17
4.2. Capitalization.........................................18
4.3. Authority; No Violation................................18
4.4. Consents and Approvals.................................18
4.5. Financial Statements...................................19
4.6. Legal Proceedings......................................19
4.7. SEC Reports............................................19
4.8. S-4 Information........................................20
4.9. Broker's Fees..........................................20
4.10. Reorganization.........................................20
4.11. Disclosure.............................................20
ARTICLE V. COVENANTS RELATING TO CONDUCT OF BUSINESS............20
5.1. Conduct of Businesses Prior to the Effective Time......20
5.2. Antenna Forbearances...................................20
5.3. Andrew Forbearances....................................22
ARTICLE VI. ADDITIONAL AGREEMENTS................................22
6.1. Regulatory and Other Matters...........................22
6.2. Access to Information..................................22
6.3. Stockholders' Approval.................................23
6.4. NNM Listing............................................23
6.5. Affiliates.............................................23
6.6. Additional Agreements..................................23
6.7. Advice of Changes......................................23
6.8. Takeover Proposals.....................................23
6.9. Tax Matters............................................24
6.10. Exchange Act Reports...................................25
6.11. Combined Operations Financial Statements...............25
ARTICLE VII. CONDITIONS PRECEDENT.................................25
7.1. Conditions to Each Party's Obligation To Effect
the Merger........................................25
7.2. Conditions to Obligations of Andrew....................26
7.3. Conditions to Obligations of Antenna...................27
ARTICLE VIII. TERMINATION AND AMENDMENT............................29
8.1. Termination............................................29
8.2. Effect of Termination..................................30
8.3. Amendment; Extension; Waiver...........................30
ARTICLE IX. GENERAL PROVISIONS...................................30
9.1. Expenses...............................................30
9.2. Notices................................................30
9.3. Interpretation.........................................31
9.4. Counterparts...........................................32
9.5. Entire Agreement.......................................32
9.6. Governing Law..........................................32
9.7. Severability...........................................32
9.8. Publicity..............................................32
9.9. Assignment; Third Party Beneficiaries..................32
9.10. Knowledge and Awareness................................32
9.11. Construction...........................................33
9.12. Pooling of Interests Accounting; Tax Free
Reorganization....................................33
EXHIBITS
A - Certificate of Merger
B - Affiliate Letter
C - Non-Competition and Confidentiality Agreement
D - McDermott, Will & Emery Legal Opinion
E - Antenna Certificate
F - Antenna Shareholder's Certificate
G - Gardner, Carton & Douglas Legal Opinion
<PAGE>
INDEX OF DEFINED TERMS
Agreement............................................................. Recitals
Andrew ............................................................... Recitals
Andrew Common Stock ................................................. ss.2.1(a)
Andrew Financial Statements Forms 10-Q ........................... ss.4.5
Andrew Stock Value .................................................... 2.1(a)
Antenna ............................................................. Recital
Antenna Plans ....................................................... ss.3.10(a)
Antenna Common Stock ............................................ ss.2.1
Antenna Contract ................................................. ss.3.13
Antenna Financial Statements .................................... ss.3.7
Antenna Subsidiaries ............................................... ss.3.1(b)
Certificate of Merger ........................................... ss.1.3
Closing ......................................................... ss.1.2
Closing Date .................................................... ss.1.2
Code ............................................................ ss.1.8
Common Certificate ................................................. ss.2.1(b)
Confidentiality Agreement ....................................... ss.6.2
Consents......................................................... ss.3.4
Delaware Secretary .............................................. ss.1.3
DGCL ............................................................ ss.1.1
Disclosure Schedule ................................................. Art. III
Effective Time .................................................. ss.1.3
Environmental Laws .................................................. ss.3.15(e)
ERISA ............................................................... ss.3.11(a)
ERISA Affiliates .................................................... ss.3.11(a)
Exchange Act .................................................... ss.4.5
Exchange Ratio ..................................................... ss.2.1(a)
GAAP ............................................................ ss.3.7
Governmental Authority .......................................... ss.3.4
Hazardous Material .................................................. ss.3.15(e)
HSR Filing....................................................... ss.3.4
IBCA................................................................ ss.7.2(c)
Intellectual Property ............................................ ss.3.18
Interim Financial Statements..................................... ss.3.7
IRS ................................................................. ss.3.11(b)
Liens .............................................................. ss.3.2(b)
Material Adverse Effect ......................................... ss.3.8
Merger ............................................................. Recital
1994 Balance Sheet ............................................... ss.3.14
NNM ................................................................ ss.2.1(a)
Person.............................................................. ss.5.2(a)
Primary Customers................................................. ss.3.29
Requisite Regulatory Approvals...................................... ss.7.1(a)
Returns.............................................................. ss.3.10(c)
S-4.............................................................. ss.3.4
SEC.............................................................. ss.3.4
Securities Act ................................................... ss.3.26
Surviving Corporation ........................................... ss.1.1
Takeover Proposal................................................ ss.6.8
Taxes................................................................ ss.3.10(c)
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated January 25, 1996 (the "Agreement"),
by and between ANDREW CORPORATION, a Delaware corporation ("Andrew"), and THE
ANTENNA COMPANY, an Illinois corporation ("Antenna").
WHEREAS, the Boards of Directors of Andrew and Antenna have determined
that it is in the best interests of their respective companies and stockholders
to consummate the business combination provided for in this Agreement in which
Antenna, subject to the terms and conditions set forth herein, will merge with
and into Andrew (the "Merger");
WHEREAS, the parties desire to make certain representations, warranties
and agreements in connection with the Merger and to establish certain conditions
to the Merger.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, the parties agree
as follows:
ARTICLE I.
THE MERGER
1.1. The Merger. Subject to the terms and conditions of this Agreement,
in accordance with the Delaware General Corporation Law (the "DGCL"), at the
Effective Time (as hereinafter defined), Antenna shall merge with and into
Andrew. Andrew shall be the surviving corporation in the Merger (hereinafter
sometimes referred to as the "Surviving Corporation"), and shall continue its
corporate existence under the laws of the State of Delaware. Upon consummation
of the Merger, the separate corporate existence of Antenna shall terminate.
1.2. Closing. Subject to the terms and conditions of this Agreement,
the closing of the Merger (the "Closing") will take place at 10:00 a.m., at the
offices of Gardner, Carton & Douglas, 321 North Clark Street, Chicago, Illinois,
not later than five business days after the satisfaction or waiver of the latest
to occur of the conditions set forth in Article VII, unless extended by mutual
agreement of the parties (the "Closing Date").
1.3. Effective Time. The Merger shall become effective as set forth in
a certificate of merger substantially in the form attached as Exhibit A (the
"Certificate of Merger"), which shall be filed with the Secretary of State of
the State of Delaware (the "Delaware Secretary") on the Closing Date. The term
"Effective Time" shall be the date and time when the Merger becomes effective,
as set forth in the Certificate of Merger.
1.4. Effects of the Merger. At and after the Effective Time, the
Merger shall have the effects set forth in the DGCL.
1.5. Certificate of Incorporation and By-Laws. Subject to the terms and
conditions of this Agreement, at the Effective Time, the Certificate of
Incorporation and By-Laws of Andrew shall be the Certificate of Incorporation
and By-Laws of the Surviving Corporation until thereafter amended in accordance
with applicable law.
<PAGE>
1.6. Directors and Officers. The directors and officers of Andrew
immediately prior to the Effective Time shall continue as the directors and
officers of the Surviving Corporation, unless and until thereafter changed in
accordance with the DGCL and the Surviving Corporation's Certificate of
Incorporation and By-Laws.
1.7. Andrew Common Stock. At and after the Effective Time, each
share of Andrew Common Stock issued and outstanding immediately prior thereto
shall remain issued and outstanding and shall not be affected by the Merger.
1.8. Tax Consequences. Andrew and Antenna intend that the Merger shall
constitute a reorganization within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), and that this Agreement shall
constitute a "plan of reorganization" for the purposes of Section 368 of the
Code. Andrew and Antenna also intend that the Merger be accounted for as a
pooling of interests pursuant to Opinion No. 16 of the Accounting Principles
Board.
ARTICLE II.
CONVERSION AND EXCHANGE OF SHARES
2.1. Conversion of Antenna Common Stock. At the Effective Time,
by virtue of the Merger and without any action on the part of Andrew, Antenna
or any stockholder of Antenna:
(a) Each share of the common stock, par value $0.10 per share, of
Antenna (the "Antenna Common Stock") issued and outstanding immediately prior to
the Effective Time shall be converted into the right to receive shares of the
common stock, par value $.01 per share, of Andrew (the "Andrew Common Stock") at
an exchange ratio (the "Exchange Ratio") determined as follows: each share of
Antenna Common Stock shall be exchanged for that number of shares of Andrew
Common Stock equal to the quotient of (x) the number obtained by dividing
$52,500,000 by the number of shares of Antenna Common Stock outstanding
immediately prior to the Effective Time, divided by (y) the greater of $42.00,
or the average of the high and low per share sale price of the Andrew Common
Stock, as reported on the Nasdaq National Market (the "NNM") for each of the ten
trading days immediately preceding and including the second trading day prior to
the Closing, as reported in the NNM listings published in The Wall Street
Journal (the "Andrew Stock Value"). No fractional shares of Andrew Common Stock
shall be issued, and in lieu thereof, Andrew shall pay to each former
stockholder of Antenna who otherwise would be entitled to receive such
fractional share an amount in cash determined by multiplying (i) the greater of
$42.00 or the Andrew Stock Value by (ii) the fraction of a share (rounded to the
nearest thousandth when expressed as an Arabic number) of Andrew Common Stock to
which such holder would otherwise be entitled to receive pursuant to this
Section 2.1.
<PAGE>
(b) All of the shares of Antenna Common Stock converted into Andrew
Common Stock pursuant to this Article shall no longer be outstanding and shall
automatically be canceled and cease to exist at the Effective Time, and each
certificate previously representing any such shares of Antenna Common Stock (a
"Common Certificate") shall thereafter represent the right to receive (i) a
certificate representing the number of whole shares of Andrew Common Stock and
(ii) cash in lieu of fractional shares into which the shares of Antenna Common
Stock represented by such Common Certificate have been converted. If, prior to
the Effective Time, the outstanding shares of Andrew Common Stock or Antenna
Common Stock shall have been increased, decreased, changed into or exchanged for
a different number or kind of shares or securities as a result of a
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split, or other similar change in capitalization, then an
appropriate and proportionate adjustment shall be made to the Exchange Ratio.
(c) At the Effective Time, all shares of Antenna Common Stock that are
owned by Antenna as treasury stock and all shares of Antenna Common Stock that
are owned, directly or indirectly, by Antenna, Andrew or any of their respective
wholly-owned subsidiaries shall be canceled and shall cease to exist, and no
stock of Andrew or other consideration shall be delivered in exchange therefor.
All shares of Andrew Common Stock that are owned by Antenna or any of its
wholly-owned subsidiaries shall become treasury stock of Andrew.
(d) After the Effective Time, there shall be no transfers on Antenna's
stock transfer books of shares of Antenna Common Stock.
2.2. Exchange of Shares. (a) At the Closing, each shareholder of
Antenna shall have the right to deliver to Andrew Common Certificates
representing all of the issued and outstanding shares of Antenna Common Stock
owned by such shareholder, duly endorsed for transfer or accompanied by duly
executed stock powers, free and clear of all options, liens, claims, charges,
restrictions and other encumbrances of any nature whatsoever, other than federal
and state securities law restrictions. Upon proper surrender of a Common
Certificate for exchange and cancellation to Andrew, and in accordance with and
subject to the other provisions of this Agreement, the holder of such Common
Certificate shall receive in exchange therefor (i) a certificate representing
that number of whole shares of Andrew Common Stock to which such holder of
Antenna Common Stock shall have become entitled, and (ii) a check representing
the amount of any cash in lieu of fractional shares which such holder has the
right to receive. The Common Certificate so surrendered shall forthwith be
canceled. No interest shall be paid or accrued on any cash in lieu of fractional
shares payable to holders of Common Certificates.
(b) If any certificate representing shares of Andrew Common Stock is to
be issued in a name other than that in which the Common Certificate surrendered
in exchange therefor is registered, it shall be a condition of the issuance
thereof that the Common Certificate shall be properly endorsed (or accompanied
by an appropriate instrument of transfer) and otherwise in proper form for
transfer, and that the person requesting such exchange shall pay to Andrew in
advance any transfer or other taxes required by reason thereof, or shall
establish to the satisfaction of Andrew that such tax has been paid or is not
payable.
<PAGE>
(c) In the event any Common Certificate shall have been lost, stolen or
destroyed, the person so claiming shall make an affidavit of that fact and, if
required by Andrew, post a bond in such amount as Andrew may determine is
reasonably necessary as indemnity against any claim that may be made against it
with respect to such Common Certificate. Thereafter, Andrew shall issue in
exchange for such lost, stolen or destroyed Common Certificate the shares of
Andrew Common Stock and any cash in lieu of fractional shares deliverable in
respect thereof pursuant to this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF ANTENNA
Except as disclosed by Antenna in the disclosure schedule delivered
pursuant to this Agreement (the "Disclosure Schedule"), Antenna represents and
warrants to Andrew as follows:
3.1. Corporate Organization. (a) Antenna is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Illinois. Antenna has the corporate power and authority to own or lease all of
its properties and assets and to carry on its business as it is now being
conducted, and is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the nature of the business conducted by
it or the character or location of the properties and assets owned or leased by
it makes such licensing or qualification necessary. Correct and complete copies
of the Articles of Incorporation and By-Laws of Antenna, as in effect on the
date of this Agreement, have been made available to Andrew by Antenna.
(b) Section 3.1(b) of the Disclosure Schedule sets forth the name,
jurisdiction where organized and capitalization of each entity included in the
consolidated financial statements of Antenna (the "Antenna Subsidiaries") and
each other corporation, partnership, limited liability company, joint venture or
other entity in which Antenna holds an interest. Each Antenna Subsidiary (i) is
duly organized or formed, validly existing and in good standing under the laws
of its jurisdiction of organization, (ii) is duly licensed or qualified to do
business and is in good standing in each jurisdiction in which the nature of the
business conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification necessary and
(iii) has the requisite power and authority to own or lease all of its
properties and assets and to carry on its business as now being conducted.
(c) The minute books of Antenna and the Antenna Subsidiaries accurately
reflect in all material respects all actions taken by the boards of directors,
including committees thereof, and the stockholders of Antenna and the Antenna
Subsidiaries.
<PAGE>
3.2. Capitalization. (a) The authorized capital stock of Antenna
consists of 100,000 shares of Antenna Common Stock, of which 9,000 shares are
issued and outstanding. Each record holder of Antenna Common Stock, and the
number of shares owned by each, is set forth in Section 3.2 of the Disclosure
Schedule. No shares of Antenna Common Stock are held in Antenna's treasury and
no shares of Antenna Common Stock are reserved for issuance. All of the issued
and outstanding shares of Antenna Common Stock have been duly authorized and
validly issued and are fully paid, nonassessable and free of preemptive rights,
with no personal liability attaching to the ownership thereof. Antenna does not
have and is not bound by any outstanding subscriptions, options, convertible
securities, warrants, calls, commitments or agreements of any character calling
for the purchase or issuance of any shares of its capital stock.
(b) Antenna owns, directly or indirectly, all of the issued and
outstanding shares of capital stock of the Antenna Subsidiaries, free and clear
of any liens, pledges, charges, encumbrances and security interests of any kind
(collectively, "Liens"), and all of such shares have been duly authorized and
validly issued and are fully paid, nonassessable and free of preemptive rights,
with no personal liability attaching to the ownership thereof. No Antenna
Subsidiary has or is bound by any outstanding subscriptions, options,
convertible securities, warrants, calls, commitments or agreements of any
character calling for the purchase or issuance of any shares of its capital
stock or any other equity interest in such Subsidiary.
3.3. Authority; No Violation. (a) Antenna has the corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly approved by the Board of Directors of Antenna. Except for the adoption
of this Agreement by the affirmative vote of holders owning 66-2/3% or more of
the issued and outstanding shares of Antenna Common Stock, no other corporate
proceedings on the part of Antenna are necessary to approve this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Antenna and constitutes a valid and
binding obligation of Antenna, enforceable against Antenna in accordance with
its terms.
(b) The execution and delivery of this Agreement by Antenna, the
consummation by Antenna of the transactions contemplated hereby, and the
compliance by Antenna with the terms or provisions hereof, will not (i) violate
any provision of the Articles of Incorporation or By-Laws of Antenna, (ii)
violate any law, statute, code, ordinance, rule, regulation, judgment, order,
writ, decree or injunction applicable to Antenna or any of the Antenna
Subsidiaries or any of their respective properties or assets, or (iii) violate,
conflict with, breach any provision of or result in the loss of any benefit or
the increase in the amount of any liability or obligation under, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of, accelerate the
performance required by, or result in the creation of any Lien upon any of the
properties or assets of Antenna or any of the Antenna Subsidiaries under any
note, bond, mortgage, indenture, deed of trust, license, lease, contract,
agreement or other instrument or obligation to which Antenna or any of the
Antenna Subsidiaries is a party, or by which they or any of their respective
properties or assets may be bound or affected.
<PAGE>
3.4. Consents and Approvals. Except for (i) the filing of the
Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 (the "HSR Filing") and the expiration of the waiting period
thereunder, (ii) the filing of the Certificate of Merger with the Delaware
Secretary pursuant to the DGCL, (iii) the filing of Articles of Merger with the
Illinois Secretary of State pursuant to the Illinois Business Corporation Act of
1983, as amended, (iv) the approval of this Agreement by the requisite vote of
the holders of Antenna Common Stock, and (v) the filing with the Securities and
Exchange Commission (the "SEC") and declaration of effectiveness of a
Registration Statement on Form S-4 (the "S-4"), no consent, approval or
authorization of, or withholding of objection on the part of, or filing,
registration or qualification with, or notice to (collectively, the "Consents")
any court, administrative agency, commission or other governmental authority or
instrumentality, whether Federal, state, local or foreign (each a "Governmental
Authority"), or with any third party are necessary in connection with the
execution and delivery by Antenna of this Agreement and the consummation by
Antenna of the Merger and the other transactions contemplated by this Agreement.
3.5. Reports. Antenna and each of the Antenna Subsidiaries have timely
filed all reports, registrations and statements required to be filed since
January 1, 1991 with any Governmental Authority, and have paid all fees and
assessments due and payable in connection therewith. No Governmental Authority
has initiated any proceeding or, to the best knowledge of Antenna, investigation
into the business or operations of Antenna or any of the Antenna Subsidiaries.
3.6. Compliance with Applicable Law. Antenna and each of the Antenna
Subsidiaries hold all licenses, franchises, permits and authorizations necessary
for the lawful conduct of their respective businesses and have complied with and
are not in default under any law, statute, code, ordinance, rule, regulation,
judgment, order, writ, decree or injunction of any Governmental Authority
applicable to Antenna or any of the Antenna Subsidiaries.
3.7. Financial Statements. Antenna has previously provided Andrew with
correct and complete copies of the following (collectively, the "Antenna
Financial Statements"): (a) the consolidated balance sheets of Antenna and the
Antenna Subsidiaries as of December 31, 1994, 1993, 1992 and 1991, and the
related consolidated statements of income and retained earnings and cash flows
for the fiscal years ended December 31, 1994, 1993, 1992 and 1991, in each case
accompanied by the audit report of William J. Barnes & Co., Ltd., independent
public accountants with respect to Antenna, and (b) the unaudited consolidated
balance sheets of Antenna and the Antenna Subsidiaries as of March 31, June 30
and September 30, 1995 and the related unaudited consolidated statements of
income for the periods then ended (the "Interim Financial Statements"). The
Antenna Financial Statements fairly present (subject, in the case of the
unaudited statements, to recurring audit adjustments customary in nature and
amount), the consolidated financial position of Antenna and the Antenna
Subsidiaries as of the dates thereof, and the consolidated results of operations
and cash flows of Antenna and the Antenna Subsidiaries for the respective fiscal
periods or as of the respective dates thereof. Each of the Antenna Financial
Statements, including the notes thereto, has been, or will be, prepared in
accordance with generally accepted accounting principles ("GAAP") consistently
applied during the periods involved. The books and records of Antenna and the
Antenna Subsidiaries have been, and are being, maintained in accordance with all
applicable legal and accounting requirements.
<PAGE>
3.8. Absence of Certain Changes or Events. (a) Since December 31, 1994,
(i) Antenna and the Antenna Subsidiaries, taken as a whole, have not incurred
any material liability that is not disclosed in the Interim Financial
Statements, (ii) no event has occurred which, individually or in the aggregate,
could have a material adverse effect on the business, properties, profits,
operations or financial condition (a "Material Adverse Effect") of Antenna and
the Antenna Subsidiaries, taken as a whole, and (iii) Antenna and the Antenna
Subsidiaries have carried on their respective businesses in the ordinary and
usual course.
(b) Since December 31, 1994, neither Antenna nor any of the Antenna
Subsidiaries has (i) increased the salaries, wages, or other compensation, or
pensions, fringe benefits or other perquisites payable to any director,
executive officer or employee, or (ii) granted any severance or termination pay,
or (iii) paid or accrued any bonuses or commissions, or (iv) suffered any
strike, work stoppage, slowdown, or other labor disturbance which could, either
individually or in the aggregate, result in a Material Adverse Effect on Antenna
and the Antenna Subsidiaries, taken as a whole, or the Surviving Corporation.
3.9. Legal Proceedings and Restrictions. (a)There are no actions,
suits, proceedings, claims or investigations pending, or to the knowledge of
Antenna, threatened against or affecting Antenna or any of the Antenna
Subsidiaries at law or in equity or before any Governmental Authority.
(b) There is no judgment, order, writ, decree, injunction or regulatory
restriction imposed upon Antenna, any of the Antenna Subsidiaries or their
assets which has had, or could reasonably be expected to have, a Material
Adverse Effect on Antenna and the Antenna Subsidiaries, taken as a whole.
3.10. Taxes and Tax Returns.
(a) (i) Antenna and the Antenna Subsidiaries (which term for purposes
of this Section 3.10 shall include former subsidiaries of Antenna for
periods during which they were owned) have timely filed (when due or
prior to the expiration of any extension of the time to file) correct
and complete Returns in respect of Taxes required to be filed; all
Taxes shown on such Returns or otherwise known by Antenna to be due or
payable have been timely paid; no adjustment relating to any such
Return has been proposed in writing by any Governmental Authority,
except proposed adjustments that have been resolved prior to the date
hereof; and there are no outstanding summons, subpoenas or written
requests for information with respect to any such Returns or the Taxes
reflected thereon. To Antenna's knowledge there is no basis for
imposing any additional Taxes on it or any of the Antenna Subsidiaries
other than the Taxes shown on such Returns. There are no outstanding
waivers or agreements extending the statute of limitations for any
period with respect to any Tax to which Antenna or any of the Antenna
Subsidiaries may be subject and neither Antenna nor any of the Antenna
Subsidiaries is under audit by any Governmental Authority for any Tax.
There are no Tax liens on any assets of Antenna or any of the Antenna
Subsidiaries other than liens for Taxes not yet due or payable;
<PAGE>
(ii) Antenna and the Antenna Subsidiaries have paid, on the
basis of Antenna's good faith estimate of the required installments,
all estimated Taxes required to be paid under Section 6655 of the Code
or any comparable provision of state, local or foreign law; and all
Taxes which will be due and payable for any period or portion thereof
ending on or prior to the Closing Date will have been paid or will be
reflected on Antenna's books as an accrued Tax liability, either
current or deferred. The amount of such Tax liabilities as of September
30, 1995 will be set forth in Section 3.10 of the Disclosure Schedule.
All Taxes required to be withheld, collected or deposited by Antenna or
any of the Antenna Subsidiaries during any taxable period for which the
applicable statute of limitations on assessment remains open have been
timely withheld, collected or deposited and, to the extent required,
have been paid to the relevant Governmental Authority;
(iii) For each taxable period for which the statute of
limitations on assessment remains open, Antenna has not (A) been either
a common parent corporation or a member corporation of an affiliated
group of corporations filing a consolidated Federal income tax return,
or (B) acquired any corporation that filed a consolidated Federal
income tax return with any other corporation that was not also acquired
by Antenna; and none of the Antenna Subsidiaries or any other entity
that was included in the filing of a Return with Antenna on a
consolidated, combined, or unitary basis has left Antenna's
consolidated, combined or unitary group in a taxable year for which the
statute of limitations on assessment remains open. Neither Antenna nor
any of the Antenna Subsidiaries has been at any time a member of any
partnership or joint venture or the holder of a beneficial interest in
any trust for any period for which the statute of limitations for any
Tax potentially applicable as a result of such membership or holding
has not expired;
(iv) No consent under Section 341(f) of the Code has been
filed with respect to Antenna or any of the Antenna Subsidiaries; and
(v) There is no significant difference on the books of Antenna
or any of the Antenna Subsidiaries between the amounts of the book
basis and the tax basis of assets (net of liabilities) that is not
accounted for by an accrual on the books for Federal income tax
purposes.
(b) Neither Antenna nor any of the Antenna Subsidiaries:
(i) Has any property that is or will be required to be treated
as being owned by another person under the provisions of Section
168(f)(8) of the Code (as in effect prior to amendment by the Tax
Reform Act of 1986) or is "tax-exempt use property" within the meaning
of Section 168 of the Code;
(ii) Has any Tax sharing or allocation agreement or
arrangement (written or oral), owes any amount pursuant to any Tax
sharing or allocation agreement or arrangement, or will have any
liability in respect to any Tax sharing or allocation agreement or
arrangement with respect to any entity that has been sold or disposed
of;
<PAGE>
(iii) Was acquired in a qualified stock purchase under Section
338(d)(3) of the Code and no elections under Section 338(g) of the
Code, protective carryover basis elections, offset prohibition
elections or other deemed or actual elections under Section 338 are
applicable to any of them;
(iv) Is or has been subject to the provisions of Section
1503(d) of the Code related to "dual consolidated loss" rules;
(v) Is a party to any agreement, contract or arrangement that
would result, individually or in the aggregate, in the payment of any
"excess parachute payments" within the meaning of Section 280G of the
Code by reason of the Merger;
(vi) Has any income reportable for a period ending after the
Closing Date but attributable to an installment sale occurring in or a
change in accounting method made for a period ending on or prior to the
Closing Date which resulted in a deferred reporting of income from such
transaction or from such change in accounting method (other than a
deferred intercompany transaction), or deferred gain or loss arising
out of any deferred intercompany transaction; or
(vii) Has any unused net operating loss, unused net capital
loss, unused tax credit, or excess charitable contribution for Federal
income tax purposes.
(viii) Is a United States real property holding corporation
as defined in Section 897 of the Code.
(c) For purposes of this Agreement:
(i) "Returns" means any and all returns, reports, information
returns and information statements with respect to Taxes required to be
filed with any Governmental Authority, including consolidated, combined
and unitary tax returns.
(ii) "Tax" or "Taxes" means any and all taxes, charges, fees,
levies, and other governmental assessments and impositions of any kind,
payable to any Governmental Authority, including income, franchise, net
worth, profits, gross receipts, minimum alternative, estimated, ad
valorem, value added, sales, use, service, real or personal property,
capital stock, license, payroll, withholding, disability, employment,
social security, Medicare, workers' compensation, unemployment
compensation, utility, severance, production, excise, stamp,
occupation, premiums, windfall profits, transfer and gains taxes,
customs duties, imposts, charges, levies or other similar assessments
of any kind, and interest, penalties and additions to tax imposed with
respect thereto.
<PAGE>
3.11. Employee Benefits.
(a) Antenna (which for purposes of this Section 3.11 shall include the
Antenna Subsidiaries and any other ERISA Affiliate (as hereinafter defined)) has
not at any time within the past three years, maintained, administered or
contributed to any pension, profit-sharing, thrift or 401(k), disability,
medical, dental, health, life (including any individual life insurance policy),
death benefit, group insurance or any other welfare plan, bonus, incentive,
deferred compensation, stock purchase, stock option, severance plan, salary
continuation, vacation, holiday, sick leave, fringe benefit, personnel policy,
or similar plan, trust, program, policy, commitment or arrangement whether or
not covered by Employee Retirement and Income Security Act of 1974, as amended
("ERISA") and whether or not funded or insured and whether written or oral
(hereinafter referred to as the "Antenna Plans"), which could result in Andrew
or Antenna having any liabilities, whether direct or indirect.
(b) Antenna has made available to Andrew correct and complete copies of
(i) each Antenna Plan document, amendments thereto and board resolutions
adopting such plans and amendments, (ii) each current summary plan description,
(iii) any and all agreements, insurance policies and other documents related to
any Antenna Plan, including written descriptions of any unwritten Antenna Plans,
(iv) the most recent determination letter from the Internal Revenue Service (the
"IRS") for each Antenna Plan (as applicable), and (v) the three most recent
Annual Reports - Form 5500 (including accompanying schedules) and summary annual
reports for each Antenna Plan.
(c) (i) Each Antenna Plan (and any related agreements and documents)
and Antenna have at all times complied in all material respects with
the applicable requirements of ERISA, the Code and any other applicable
law (including regulations and rulings thereunder), and the Antenna
Plans have at all times been properly administered in all material
respects in accordance with all such laws and with the terms of each
applicable plan document, (ii) each of the Antenna Plans intended to be
"qualified" within the meaning of Code Section 401(a) is so qualified
and no facts exist that could reasonably be expected to affect
adversely such "qualified" status, (iii) no Antenna Plan provides
benefits, including, without limitation, death or medical benefits
(whether or not insured), for current or former employees following
their retirement or other termination of service, other than coverage
mandated by applicable statutes or death benefits or retirement
benefits under any "employee pension plan" (as such term is defined in
ERISA Section 3(2)), (iv) there has not occurred nor, to the knowledge
of Antenna, is any person contractually bound to enter into any
non-exempt "prohibited transaction" within the meaning of Code Section
4975 or ERISA Section 406, (v) Antenna has not engaged in a transaction
which could subject it to either a civil penalty under ERISA Section
409 or a tax under Code Section 4976, (vi) there are no pending,
threatened or anticipated claims (other than routine claims for
benefits) by, on behalf of or against Antenna, any of the Antenna Plans
or any trusts related thereto, (vii) Antenna has made or caused to be
made on a timely basis any and all contributions, premiums and other
amounts due and owing under the terms of any Antenna Plan or as
otherwise required by applicable law, (viii) Antenna has in all
respects complied with Code Section 4980B and other applicable laws
concerning the continuation of employer-provided health benefits
following a termination of employment or any other event that would
otherwise terminate such coverage, (ix) Antenna has not at any time
maintained, administered or contributed to any plan subject to ERISA
Title IV, and (x) Antenna has not at any time participated in, made
contributions to or had any other liability with respect to a
"multiemployer plan" under ERISA Section 4001, a "multiple employer
plan" under Code Section 413(c), or a "multiple employer welfare
arrangement" under ERISA Section 3(40).
<PAGE>
(d) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) result in any
payment (including, without limitation, severance, unemployment compensation,
golden parachute or otherwise) becoming due to any director, officer or employee
of Antenna, (ii) increase any benefits otherwise payable under any Antenna Plan,
(iii) result in any acceleration of the time of payment or vesting of any such
benefits, or (iv) impair the rights of Antenna under any Antenna Plan.
(e) There are no actions, claims, investigations or audits pending or,
to Antenna's knowledge, threatened with respect to any Antenna Plan (other than
claims for benefits in the ordinary course) that will create any liability or
obligation for the Surviving Corporation with respect to any Antenna Plan
participant, beneficiary, alternate payee or other claimant, or with respect to
any Governmental Authority, including, but not limited to, the IRS, the
Department of Labor and the Pension Benefit Guaranty Corporation.
(f) For purposes of this Agreement, "ERISA Affiliate" means Antenna and
(i) any corporation that is a member of a controlled group of corporations
within the meaning of Section 414(b) of the Code of which Antenna is a member,
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Code of which Antenna is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the Code
of which Antenna, any corporation described in clause (i) above or any trade or
business described in clause (ii) above is a member.
3.12. Employment and Labor Relations. To the knowledge of Antenna and
the Antenna Subsidiaries, no executive, key employee or group of employees has
any plans to terminate its or their employment with Antenna or any of the
Antenna Subsidiaries. There are no charges, complaints, investigations or
litigation currently pending, or to the knowledge of Antenna threatened (and to
the knowledge of Antenna there is no basis therefor), against Antenna or any of
the Antenna Subsidiaries, relating to alleged employment discrimination, unfair
labor practices, equal pay discrimination, affirmative action noncompliance,
occupational safety and health, breach of employment contract, employee benefit
matters, wrongful discharge or other employment-related matters. There are no
outstanding orders or charges against Antenna or any of the Antenna Subsidiaries
under any applicable occupational safety and health laws in any jurisdiction in
which Antenna or any of the Antenna Subsidiaries conduct business. All levies,
assessments and penalties made against Antenna or any of the Antenna
Subsidiaries pursuant to any applicable workers' compensation legislation in any
jurisdiction in which Antenna or any of the Antenna Subsidiaries conduct
business have been paid by Antenna or the Antenna Subsidiaries. Neither Antenna
nor any of the Antenna Subsidiaries is a party to any contracts with any labor
union or employee association nor has Antenna or any of the Antenna Subsidiaries
made commitments to or conducted negotiations with any labor union or employee
association with respect to any future contracts. Neither Antenna nor any of the
Antenna Subsidiaries is aware of any current attempts to organize or establish
any labor union or employee association with respect to any employees of Antenna
or any of the Antenna Subsidiaries, and there is no existing or pending
certification of any such union with regard to a bargaining unit.
<PAGE>
3.13. Contracts. Section 3.13 of the Disclosure Schedule lists or
describes the following contracts, agreements, licenses, permits, arrangements,
commitments or understandings (whether written or oral) which are currently in
effect or which will, without any further action on the part of Antenna or any
of the Antenna Subsidiaries become effective in the future, to which Antenna or
any of the Antenna Subsidiaries is a party (collectively, the "Antenna
Contracts"):
(a) any agreement for the lease of personal property or real property
to or from any person or entity that individually involves an expenditure by the
lessee of in excess of $10,000 in any one year;
(b) any agreement for the purchase, sale or distribution of products,
materials, commodities, supplies or other personal property, or for the
furnishing or receipt of services, the performance of which will extend over a
period of more than one year or involve consideration payable by any party in
excess of $10,000 in any one year;
(c) any agreement creating, governing or providing for an investment
or participation in a partnership or joint venture;
(d) any agreement under which Antenna or any of the Antenna
Subsidiaries has created, incurred, assumed or guaranteed any indebtedness for
borrowed money, or any capitalized lease obligation, or under which Antenna or
any of the Antenna Subsidiaries has imposed a Lien on any of its assets;
(e) any agreement concerning confidentiality or noncompetition;
(f) any agreement with any director, officer, employee or stockholder
of Antenna or any of their affiliates;
(g) any pension, profit sharing, thrift or 401(k), bonus, incentive,
deferred compensation, stock purchase, stock option, severance, salary
continuation or other plan or arrangement for the benefit of current or former
directors, officers or employees;
(h) any agreement for the employment of any individual on a full-time,
part-time, consulting or other basis;
(i) any agreement relating to any Intellectual Property (as that term
is defined in Section 3.18) used by Antenna or any of the Antenna Subsidiaries
in the conduct of their businesses, or that is licensed by Antenna or any of the
Antenna Subsidiaries for use by others;
(j) any agreement under which the consequences of a default,
termination, non-renewal or acceleration could have a Material Adverse Effect on
Antenna and the Antenna Subsidiaries, taken as a whole; or
(k) any other agreement the performance of which involves consideration
payable by any party in excess of $10,000 in any one year.
<PAGE>
Antenna has made available to Andrew a correct and complete copy of
each Antenna Contract. Except as set forth in Section 3.13 of the Disclosure
Schedule, (i) each Antenna Contract is legal, valid, binding, enforceable and in
full force and effect, (ii) the consummation of the Merger will not cause a
breach or termination of any Antenna Contract nor effect a change in any of the
terms of any Antenna Contract, (iii) neither Antenna nor any of the Antenna
Subsidiaries, and, to Antenna's knowledge, no other party, is in breach or
default of any Antenna Contract and no event has occurred which with notice or
lapse of time, or both, would constitute a breach or default that would result
in or permit termination, modification or acceleration under any Antenna
Contract, and (iv) neither Antenna nor any of the Antenna Subsidiaries, and, to
Antenna's knowledge, no other party, has repudiated any provision of any Antenna
Contract.
3.14. Undisclosed Liabilities. Except for liabilities (i) that are
fully reflected or reserved against on the December 31, 1994 consolidated
balance sheet of Antenna and the Antenna Subsidiaries (the "1994 Balance Sheet")
or (ii) that were incurred in the ordinary course of business consistent with
past practice since December 31, 1994, or (iii) that are fully reflected or
reserved against in the Interim Financial Statements, neither Antenna nor any of
the Antenna Subsidiaries has incurred any liability of any nature whatsoever
(whether absolute, accrued, contingent or otherwise and whether due or to become
due).
3.15. Environmental Liability.
(a) Neither Antenna nor any of the Antenna Subsidiaries has received
any notice, or otherwise has knowledge, of any claim, and no proceeding has been
instituted raising any claim against Antenna or any of the Antenna Subsidiaries
or any of the respective real properties now or formerly owned, leased or
operated by any of them or other assets, alleging any damage to the environment
or violation of any Environmental Laws;
(b) Neither Antenna nor any of the Antenna Subsidiaries has knowledge
of any facts which would give rise to any claim, public or private, of violation
of Environmental Laws or damage to the environment emanating from, occurring on
or in any way related to real properties now or formerly owned, leased or
operated by any of them or to other assets or their use;
(c) Neither Antenna nor any of the Antenna Subsidiaries has stored or
released any Hazardous Materials on real properties now or formerly owned,
leased or operated by any of them or disposed of any Hazardous Materials, in
each case in a manner contrary to any Environmental Laws; and
(d) All buildings on all real properties now owned, leased or operated
by Antenna or any of the Antenna Subsidiaries are in compliance with applicable
Environmental Laws, except where the failure to comply could not reasonably be
expected to result in a Material Adverse Effect on Antenna and the Antenna
Subsidiaries, taken as a whole.
<PAGE>
(e) For purposes of this Agreement,
(i) "Environmental Laws" means any and all Federal, state,
county, local and foreign laws, statutes, codes, ordinances, rules,
regulations, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating
to pollution and the protection of the environment or the release of
any materials into the environment, including but not limited to those
related to hazardous substances or wastes, air emissions and discharges
to waste or public systems; and
(ii) "Hazardous Material" means any and all pollutants, toxic
or hazardous wastes or any other substances that might pose a hazard to
health or safety, the removal of which may be required or the
generation, manufacture, refining, production, processing, treatment,
storage, handling, transportation, transfer, use, disposal, release,
discharge, spillage, seepage, or filtration of which is or shall be
restricted, prohibited or penalized by any applicable law (including
asbestos, urea formaldehyde foam insulation and polycholorinated
biphenyls).
3.16. Tangible Assets. Antenna and the Antenna Subsidiaries have good
and marketable title to, or a valid leasehold interest in, the properties and
assets used by them, located on their premises, shown on the 1994 Balance Sheet
or acquired after the date thereof, except for properties and assets disposed of
in the ordinary course of business, free and clear of all Liens. Antenna and the
Antenna Subsidiaries own or lease pursuant to an Antenna Contract all buildings,
machinery, equipment and other tangible assets material to the conduct of their
businesses as presently conducted. Each such tangible asset is free from defects
(patent and latent) other than defects that do not individually or in the
aggregate materially impair its value or intended use, has been maintained in
accordance with normal industry practice, is in good operating condition and
repair (subject to normal wear and tear) and is suitable for the purposes for
which it presently is used. Section 3.16 of the Disclosure Schedule contains a
schedule of such tangible assets owned or leased by Antenna and the Antenna
Subsidiaries that have a value in excess of $10,000.
3.17. Real Property. Neither Antenna nor any of the Antenna
Subsidiaries owns any real property. Section 3.17 of the Disclosure Schedule
lists and describes briefly all real property leased or subleased to Antenna and
any of the Antenna Subsidiaries. Antenna has made available to Andrew correct
and complete copies of each such lease and sublease. Except as set forth in
Section 3.17 of the Disclosure Schedule:
(a) each such lease or sublease is legal, valid, binding, enforceable
and in full force and effect;
(b) the consummation of the transactions contemplated hereby will
neither cause the termination of each such lease or sublease nor effect a change
in any of its terms;
<PAGE>
(c) neither Antenna nor any of the Antenna Subsidiaries nor, to the
knowledge of Antenna, any other party to such lease or sublease is in breach or
default, and no event has occurred which, with notice or lapse of time, or both,
would constitute a breach or default that would permit termination, modification
or acceleration thereunder;
(d) neither Antenna nor any of the Antenna Subsidiaries nor, to the
knowledge of Antenna, any other party to each such lease or sublease has
repudiated or disputed any provision thereof;
(e) there are no oral agreements in effect as to each such lease or
sublease;
(f) to the knowledge of Antenna, the representations and warranties set
forth in clauses (a) through (e) above are true and correct with respect to the
lease underlying each such sublease; and
(g) neither Antenna nor any of the Antenna Subsidiaries has assigned,
transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in
any leasehold or subleasehold.
3.18. Intellectual Property. (a) Section 3.18 of the Disclosure
Schedule identifies each patent, trademark, service mark, trade name, assumed
name, copyright, trade secret, license to or from third parties with respect to
any of the foregoing, applications to register or registrations of any of the
foregoing or other intellectual property rights which are owned or used by or
have been issued to Antenna or any of the Antenna Subsidiaries (collectively the
"Intellectual Property"). Antenna has made available correct and complete copies
of all patents, trademarks, copyrights, registrations, licenses, permits,
agreements and applications related to the Intellectual Property to Andrew and
correct and complete copies of all other written documentation evidencing
ownership of or the right to use each such item. Except as set forth in Section
3.18 of the Disclosure Schedule:
(i) Antenna and the Antenna Subsidiaries possess all right,
title and interest in and to the Intellectual Property, free and clear
of any Lien or other restriction;
(ii) the legality, validity, enforceability, ownership or use
of the Intellectual Property is not currently being challenged, nor to
the knowledge of Antenna is it subject to any such challenge;
(iii) Antenna and the Antenna Subsidiaries have taken all
necessary or advisable action to maintain and protect the Intellectual
Property and will continue to maintain those rights prior to the
Closing so as not to affect materially the validity or enforcement of
the rights set forth in Section 3.18 of the Disclosure Schedule; and
<PAGE>
(iv) the Intellectual Property will be owned or available for
use by Andrew on identical terms and conditions immediately subsequent
to the Closing and the transactions contemplated by this Agreement will
have no Material Adverse Effect on Antenna's and the Antenna
Subsidiaries rights, title and interest in and to any of the rights set
forth in Section 3.18 of the Disclosure Schedule.
(b) To the knowledge of Antenna, (i) neither Antenna nor any of the
Antenna Subsidiaries has interfered with, infringed upon, misappropriated or
otherwise come into conflict with any intellectual property rights of third
parties, nor is Antenna or any of the Antenna Subsidiaries currently interfering
with, infringing upon, misappropriating or otherwise coming into conflict with
any intellectual property rights of third parties, and (ii) no third party has,
in the past three years, interfered with, infringed upon, misappropriated or
otherwise come into conflict with any Intellectual Property rights of Antenna or
any of the Antenna Subsidiaries that could result in a Material Adverse Effect
on Antenna and the Antenna Subsidiaries, taken as a whole, nor is any third
party currently interfering with, infringing upon, misappropriating or otherwise
coming into conflict with any Intellectual Property rights of Antenna or any of
the Antenna Subsidiaries.
3.19. Inventory. No material portion of the inventory of Antenna or any
of the Antenna Subsidiaries is unfit for the purpose for which it was procured,
or is obsolete, expired, damaged or defective. Substantially all of the
inventory of Antenna and the Antenna Subsidiaries consists of items of a
quantity and quality which are usable and saleable in the ordinary course of
business.
3.20. Notes and Accounts Receivable. All notes and accounts receivable
of Antenna and the Antenna Subsidiaries are reflected properly on Antenna's
books and records, are not subject to any setoff or counterclaim, are current
and collectible, subject only to the reserve for bad debts established in
accordance with the past practice of Antenna and the Antenna Subsidiaries.
3.21. Bank Accounts and Powers of Attorney. Section 3.21 of the
Disclosure Schedule sets forth a list of all accounts, borrowing resolutions and
deposit boxes maintained by each of Antenna and the Antenna Subsidiaries at any
bank or other financial institution and the names of the persons authorized to
effect transactions in such accounts and pursuant to such resolutions and with
access to such boxes. There are no outstanding powers of attorney executed on
behalf of Antenna or any of the Antenna Subsidiaries.
3.22. Guaranties. Neither Antenna nor any of the Antenna
Subsidiaries is a guarantor or otherwise is liable for any indebtedness,
liability or other obligation of any other person or entity.
<PAGE>
3.23. Insurance. Section 3.23 of the Disclosure Schedule lists each
insurance policy and self-insurance arrangement to which Antenna or any of the
Antenna Subsidiaries is a party, a named insured or otherwise the beneficiary
of, specifying the insurer, type of insurance, policy number and pending claims
thereunder with respect to Antenna and any of the Antenna Subsidiaries. The
coverage provided by each of such policies is in an amount, and of a type
sufficient for the business presently conducted and proposed to be conducted by
Antenna and the Antenna Subsidiaries. Antenna and the Antenna Subsidiaries are
in substantial compliance with all conditions contained in such policies.
3.24. Service Contracts and Warranties. Neither Antenna nor any of the
Antenna Subsidiaries is a party to any service contract pursuant to which
services are provided by Antenna or the Antenna Subsidiaries to a third party.
Section 3.24 of the Disclosure Schedule includes copies of the standard terms
and conditions of all product warranties for each of Antenna and the Antenna
Subsidiaries.
3.25. Certain Relationships. No stockholder, director, officer or, to
Antenna's knowledge, employee of Antenna or any of the Antenna Subsidiaries (i)
is, or controls, or is an employee of any competitor, supplier, customer or
lessor or lessee of Antenna or any of the Antenna Subsidiaries, or (ii) is
indebted to Antenna or any of the Antenna Subsidiaries in an amount in excess of
$1,000 in any individual case, or (iii) owns any asset, tangible or intangible,
which is used in the business of Antenna or any of the Antenna Subsidiaries,
other than assets that are immaterial in value; and neither Antenna nor any of
the Antenna Subsidiaries has entered into any transaction (including the
furnishing of goods or services) with any stockholder, director, officer,
employer or other affiliate, except on terms and conditions no less favorable to
Antenna or any of the Antenna Subsidiaries than would be obtained in a
comparable arm's-length transaction with a third party.
3.26. S-4 Information. None of the written information to be supplied
by Antenna for inclusion in the S-4 will, at the time the S-4 is filed with the
SEC, at any time it is amended or supplemented, at the time it becomes effective
under the Securities Act of 1933, as amended (the "Securities Act"), or at the
Closing Date contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading.
3.27. Broker's Fees. Except for the amounts set forth in the letter
agreement dated May 11, 1995 between Antenna and The Chicago Corporation,
neither Antenna nor any of the Antenna Subsidiaries nor any of their respective
directors, officers or employees has employed any person or entity as a broker,
finder or agent or incurred any liability for any broker's fees, finder's fees
or other commission in connection with the Merger or the related transactions
contemplated by this Agreement.
3.28. Pooling of Interests. Antenna has no reason to believe that the
Merger will not qualify as a "pooling of interests" for accounting purposes.
<PAGE>
3.29. Certain Customer Relationships. Section 3.29 of the Disclosure
Schedule contains an accurate list of Antenna's 15 largest customers for the
year ending December 31, 1995 (the "Primary Customers"), together with the total
dollar amount of all products purchased by such Primary Customers from Antenna
and the Antenna Subsidiaries during 1995. Antenna and the Antenna Subsidiaries
generally have good relationships with each of the Primary Customers and neither
Antenna nor any of the Antenna Subsidiaries has received any notice or otherwise
has knowledge that any Primary Customer intends to reduce the volume or dollar
amount of the products it purchases from Antenna or the Antenna Subsidiaries.
3.30. Disclosure. No representation or warranty by Antenna contained in
this Agreement (including the Disclosure Schedule and the Exhibits referred to
herein), or in any certificate furnished or to be furnished by Antenna to Andrew
in connection with the transactions contemplated hereby contains or will contain
any untrue statement of a material fact, or omits or will omit to state any
material fact required to make the statements herein or therein not misleading,
or necessary in order to provide a prospective purchaser of Antenna with
adequate information as to Antenna and the Antenna Subsidiaries and their
business, properties, profits, operations, liabilities or condition (financial
and otherwise).
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF ANDREW
Andrew represents and warrants to Antenna as follows:
4.1. Corporate Organization. Andrew is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Andrew has the corporate power and authority to own or lease all of its
properties and assets and to carry on its business as it is now being conducted,
and is duly licensed or qualified to do business and is in good standing in each
jurisdiction in which the nature of the business conducted by it or the
character or location of the properties and assets owned or leased by it makes
such licensing or qualification necessary. Correct and complete copies of the
Certificate of Incorporation and By-Laws of Andrew, as in effect as of the date
of this Agreement, have been made available to Antenna by Andrew.
4.2. Capitalization. The authorized capital stock of Andrew consists of
100,000,000 shares of Andrew Common Stock, of which as of December 13, 1995,
39,035,020 shares were issued and outstanding. All of the issued and outstanding
shares of Andrew Common Stock have been duly authorized and validly issued and
are fully paid, nonassessable and free of preemptive rights, with no personal
liability attaching to the ownership thereof. The shares of Andrew Common Stock
to be issued pursuant to the Merger will be duly authorized and validly issued
and, at the Effective Time, all such shares will be fully paid, nonassessable
and free of preemptive rights, with no personal liability attaching to the
ownership thereof.
<PAGE>
4.3. Authority; No Violation. (a) Andrew has the corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly approved by the Board of Directors of Andrew. No other corporate
proceedings on the part of Andrew are necessary to approve this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Andrew and constitutes a valid and binding
obligation of Andrew, enforceable against Andrew in accordance with its terms.
(b) The execution and delivery of this Agreement by Andrew, the
consummation by Andrew of the transactions contemplated hereby, and the
compliance by Andrew with the terms or provisions hereof, will not (i) violate
any provision of the Certificate of Incorporation or By-Laws of Andrew, (ii)
violate any law, statute, code, ordinance, rule, regulation, judgment, order,
writ, decree or injunction applicable to Andrew or any of its subsidiaries or
any of their respective properties or assets, or (iii) violate, conflict with,
breach any provision of or result in the loss of any benefit under, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of, accelerate the
performance required by, or result in the creation of any Lien upon any of the
properties or assets of Andrew or any of its subsidiaries under any note, bond,
mortgage, indenture, deed of trust, license, lease, contract, agreement or other
instrument or obligation to which Andrew or any of its subsidiaries is a party,
or by which they or any of their respective properties or assets may be bound or
affected.
4.4. Consents and Approvals. Except for (i) the HSR Filing and the
expiration of the waiting period thereunder, (ii) the filing of the Certificate
of Merger with the Delaware Secretary pursuant to the DGCL, (iii) the filing of
Articles of Merger with the Illinois Secretary of State pursuant to the Illinois
Business Corporation Act of 1983, as amended, (iv) the filing with the SEC and
declaration of effectiveness of the S-4, (v) such filings and approvals as are
required to be made or obtained under the securities or "Blue Sky" laws of
various states in connection with the issuance of the shares of Andrew Common
Stock pursuant to this Agreement, and (vi) the filings and authorizations
necessary to list the shares of Andrew Common Stock issued pursuant to this
Agreement on the NNM, no Consents from any Governmental Authority or any third
party are necessary in connection with the execution and delivery by Andrew of
this Agreement and the consummation by Andrew of the Merger and the other
transactions contemplated by this Agreement.
<PAGE>
4.5. Financial Statements. Andrew has previously provided Antenna with
correct and complete copies of (a) the consolidated balance sheet of Andrew and
its subsidiaries as of September 30, 1995, and the related consolidated
statements of income, stockholders' equity and cash flows for the fiscal year
ended September 30, 1995, accompanied by the audit report of Ernst & Young LLP,
independent public auditors with respect to Andrew, (b) the consolidated balance
sheets of Andrew and its subsidiaries as of September 30, 1994 and 1993, and the
related consolidated statements of income, stockholders' equity and cash flows
for the fiscal years ended September 30, 1994, 1993 and 1992 as reported in
Andrew's 1994 Annual Report to Stockholders filed with the SEC under the
Securities and Exchange Act (the "Exchange Act"), accompanied by the audit
report of Ernst & Young LLP, and (c) the unaudited consolidated condensed
balance sheets of Andrew and its subsidiaries as of December 31, 1994 and 1993,
March 31, 1995 and 1994 and June 30, 1995 and 1994 and the related unaudited
condensed consolidated statements of income and cash flows for the periods then
ended as reported in Andrew's Quarterly Reports on Form 10-Q for the periods
ended December 31, 1994, March 31, 1995 and June 30, 1995 filed with the SEC
under the Exchange Act (the "Andrew Forms 10-Q") (collectively, the "Andrew
Financial Statements"). The Andrew Financial Statements fairly present (subject,
in the case of the unaudited statements, to recurring audit adjustments
customary in nature and amount), the consolidated financial position of Andrew
and its subsidiaries as of the dates thereof, and the consolidated results of
the operations and cash flows of Andrew and its subsidiaries for the respective
fiscal periods or as of the respective dates thereof; and each of such
statements , including the notes thereto, comply in all material respects with
the applicable accounting requirements and published rules and regulations of
the SEC. Each of such financial statements, including the notes thereto, has
been prepared in accordance with GAAP consistently applied during the periods
involved, except, in each case, as indicated in such statements or in the notes
thereto or, in the case of unaudited statements, as permitted by the applicable
accounting requirements and published rules and regulations of the SEC for
Quarterly Reports on Form 10-Q. The books and records of Andrew and its
subsidiaries have been, and are being, maintained in all material respects in
accordance with all other applicable legal and accounting requirements and
reflect only actual transactions.
4.6. Legal Proceedings. (a) There are no actions, suits, proceedings,
claims or investigations pending, or to the knowledge of Andrew, threatened
against or affecting Andrew or any of its subsidiaries at law or in equity or
before any Governmental Authority or challenging the validity or propriety of
the transactions contemplated by this Agreement.
(b) There is no judgment, order, writ, decree, injunction or regulatory
restriction imposed upon Andrew, any of its subsidiaries or their assets which
has had, or could reasonably be expected to have, a Material Adverse Effect on
Andrew and its subsidiaries, taken as a whole, or the Surviving Corporation.
<PAGE>
4.7. SEC Reports. The annual reports on Form 10-K of Andrew for the
past two years as filed under the Exchange Act, and all other reports and proxy
statements filed or required to be filed by Andrew during such period, have been
duly and timely filed by Andrew, complied as to form with all requirements under
the Exchange Act, were true and correct in all material respects as of the dates
at which the information was furnished, and contained no untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which they were made,
not misleading.
4.8. S-4 Information. None of the information that Andrew will include
or incorporate by reference in the S-4 will, at the time the S-4 is filed with
the SEC, at any time it is amended or supplemented, at the time it becomes
effective under the Securities Act, or at the Closing Date, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading. The
S-4 will comply as to form in all material respects with the requirements of the
Securities Act and the rules and regulations promulgated thereunder.
Notwithstanding the foregoing, Andrew makes no representation or warranty with
respect to statements made in the S-4 based on written information supplied by
Antenna or the Antenna Subsidiaries specifically for inclusion therein.
4.9. Broker's Fees. Neither Andrew nor any of its subsidiaries nor any
of their respective directors, officers or employees has employed any person or
entity as a broker, finder or agent or incurred any liability for any broker's
fees, finder's fees or other commission in connection with the Merger or the
related transactions contemplated by this Agreement.
4.10. Reorganization. Andrew has no reason to believe that the Merger
will not qualify as a reorganization within the meaning of Section 368 of the
Code.
4.11. Disclosure. No representation or warranty by Andrew contained in
this Agreement, or in any financial statement, certificate or other document
furnished or to be furnished by Andrew to Antenna or its representatives in
connection herewith contains or will contain any untrue statement of a material
fact, or omits or will omit to state any material fact required to make the
statements herein or therein not misleading.
<PAGE>
ARTICLE V.
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1. Conduct of Businesses Prior to the Effective Time. During the
period from the date of this Agreement to the Effective Time, except as
expressly contemplated or permitted by this Agreement, each of Antenna and
Andrew shall, and shall cause each of their respective subsidiaries to, (i)
conduct its business in the usual, regular and ordinary course consistent with
past practice, (ii) use its reasonable efforts to maintain and preserve intact
its business organization and advantageous business relationships and retain the
services of its key officers and employees and (iii) take no action which would
adversely affect or delay the ability of either Antenna or Andrew to obtain any
necessary approvals of any Governmental Authority required for the transactions
contemplated hereby or to perform its covenants and agreements under this
Agreement.
5.2. Antenna Forbearances. During the period from the date of this
Agreement to the Effective Time, except as expressly contemplated or permitted
by this Agreement, Antenna shall not, and shall not permit any of the Antenna
Subsidiaries to, without the prior written consent of Andrew:
(a) incur any indebtedness for borrowed money (except pursuant to
existing funded debt agreements described in Section 3.13 of the Disclosure
Schedule), assume, guarantee, endorse or otherwise as an accommodation, become
responsible for the obligations of any other individual, partnership, limited
liability company, corporation or other entity (collectively, "Person"), or make
any loan or advance;
(b) (i) adjust, split, combine or reclassify any capital stock; (ii)
make, declare or pay any dividend, or make any other distribution on,
or directly or indirectly redeem, purchase or otherwise acquire, any
shares of its capital stock or any securities or obligations
convertible into or exchangeable for any shares of its capital stock,
(iii) grant any Person any right to acquire any shares of its capital
stock, or (iv) issue any additional shares of capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of
its properties or assets to any Person, or cancel or release any indebtedness or
claims owed to or held by Antenna or any of the Antenna Subsidiaries by any
Person, except in the ordinary course of business consistent with past practice;
(d) make any investment in any Person by purchase of securities,
contributions to capital, property transfers, or purchase of any property or
assets of any other Person;
<PAGE>
(e) except for transactions in the ordinary course of business
consistent with past practice, enter into or terminate any Antenna Contract, or
change any terms in any Antenna Contract, other than renewals or changes in
immaterial terms thereof or changes effective January 1, 1996 in certain terms
of the Antenna Company Employee's 401(k) Plan which changes have been made
available to Andrew;
(f) increase in any manner the compensation or fringe benefits of any
of its directors, officers or employees other than in the ordinary course of
business consistent with past practice, pay any pension or retirement allowance
not required by any existing plan or agreement to any of the foregoing, or
become a party to, amend or commit itself to, any pension, retirement,
profit-sharing or welfare benefit plan or agreement or employment agreement with
or for the benefit of any of the foregoing, except for changes effective January
1, 1996 in certain terms of the Antenna Company Employee's 401(k) Plan which
changes have been made available to Andrew;
(g) settle any claim, action or proceeding involving money damages,
except in the ordinary course of business consistent with past practice;
(h) take any action that would prevent or impede the Merger from
qualifying (i) for "pooling of interests" accounting treatment, or (ii) as a
reorganization within the meaning of Section 368 of the Code;
(i) amend its Articles of Incorporation or By-Laws; or
(j) take any action that is intended or may reasonably be expected to
result in (i) any of its representations and warranties set forth in this
Agreement being or becoming untrue in any material respect, or (ii) any of the
conditions to the Merger set forth in Article VII not being satisfied or (iii)
any violation of any provision of this Agreement, except, in each case, as may
be required by applicable law.
5.3. Andrew Forbearances. During the period from the date of this
Agreement to the Effective Time, except as expressly contemplated or permitted
by this Agreement, Andrew shall not, and shall not permit any of its
subsidiaries to, without the prior written consent of Antenna:
(a) take any action that would prevent or impede the Merger from
qualifying as a reorganization within the meaning of Section 368 of the Code; or
(b) take any action that is intended or may reasonably be expected to
result in (i) any of its representations and warranties set forth in this
Agreement being or becoming untrue in any material respect, or (ii) any of the
conditions to the Merger set forth in Article VII not being satisfied or (iii)
any violation of any provision of this Agreement, except, in each case, as may
be required by applicable law.
<PAGE>
ARTICLE VI.
ADDITIONAL AGREEMENTS
6.1. Regulatory and Other Matters. (a) Andrew, with the cooperation of
Antenna, shall promptly prepare and file the S-4 with the SEC and shall use
reasonable efforts to have the S-4 declared effective under the Securities Act
as promptly as practicable after such filing. Antenna shall, upon request,
furnish Andrew with all information or documents concerning Antenna and the
Antenna Subsidiaries, directors, officers and stockholders and such other
matters as may be reasonably necessary or advisable in connection with the S-4.
Andrew shall also use its reasonable efforts to obtain all necessary state
securities law or "Blue Sky" qualifications, permits and approvals required to
carry out the transactions contemplated by this Agreement, and Antenna shall
furnish all information concerning Antenna and the holders of Antenna Common
Stock as may be reasonably requested by Andrew in connection with such
qualifications, permits and approvals.
(b) The parties shall cooperate with each other and use their best
efforts to prepare and file promptly all necessary documentation to effect all
applications, notices, petitions and filings, including the HSR Filing, and to
obtain as promptly as practicable all Consents of Governmental Authorities and
third parties which are necessary or advisable to consummate the Merger and the
other transactions contemplated by this Agreement, and the parties shall keep
each other apprised of the status of matters relating to completion of the
transactions contemplated herein.
6.2. Access to Information. Upon reasonable notice, Antenna shall, and
shall cause the Antenna Subsidiaries to, afford to the officers, employees,
accountants, counsel and other representatives of Andrew access during normal
business hours during the period prior to the Effective Time to all of Antenna's
and the Antenna Subsidiaries' books and records, properties and contracts, and,
during such period, Antenna shall, and shall cause the Antenna Subsidiaries to,
make available to Andrew all information concerning their businesses, assets and
personnel as Andrew may reasonably request. Andrew shall hold all information
furnished by or on behalf of Antenna or the Antenna Subsidiaries pursuant to
this Section 6.2 in confidence to the extent required by, and in accordance
with, the provisions of the confidentiality agreement, dated August 11, 1995,
between Antenna and Andrew (as amended, the "Confidentiality Agreement").
6.3. Stockholders' Approval. Antenna shall call a meeting of its
stockholders for the purpose of voting upon this Agreement and the Merger,
which meeting shall be held as soon as reasonably practicable after the S-4 is
declared effective by the SEC .
6.4. NNM Listing. Andrew shall cause the shares of Andrew Common Stock
to be issued in the Merger to be approved for listing on the NNM, subject to
official notice of issuance, prior to the Effective Time.
<PAGE>
6.5. Affiliates. Prior to the Effective Time, Antenna shall obtain from
each of its stockholders a written agreement substantially in the form attached
as Exhibit B, provided, however, that Antenna is not required to obtain any such
agreement from any stockholder or group of stockholders who, in the opinion of
McDermott, Will & Emery, are not "affiliates" of Antenna pursuant to Rule 145 of
the Securities Act or otherwise pursuant to SEC accounting releases with respect
to "pooling of interests" accounting treatment.
6.6. Additional Agreements. In case at any time after the Effective
Time any further action is necessary or desirable to carry out the purposes of
this Agreement or to vest the Surviving Corporation with full title to all
properties, assets, rights, approvals, immunities and franchises of any of the
parties to the Merger, the proper officers and directors of each party to this
Agreement and their respective subsidiaries shall take all such necessary or
advisable action.
6.7. Advice of Changes. Antenna and Andrew shall promptly advise the
other party of any change or event which is likely to have a Material Adverse
Effect on it or which it believes would or would be reasonably likely to cause
or constitute a material breach of any of its representations, warranties or
covenants contained herein.
6.8. Takeover Proposals. (a) Antenna agrees that from and after its
execution of this Agreement through the Effective Time, it shall not, nor shall
it permit any of the Antenna Subsidiaries to, and it shall use its best efforts
to cause the directors, officers, employees and stockholders, and all investment
bankers, attorneys or other advisors or representatives retained by Antenna or
any of the Antenna Subsidiaries not to, (i) solicit or encourage the submission
of any Takeover Proposal (as hereinafter defined), (ii) participate in any
discussions or negotiations regarding, or furnish to any third party any
information with respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes, a Takeover Proposal,
(iii) make or authorize any statement or recommendation in support of any
Takeover Proposal or (iv) enter into any agreement with respect to any Takeover
Proposal.
<PAGE>
(b) Notwithstanding the foregoing paragraph (a), nothing contained in
this Section 6.8 shall prohibit the Board of Directors, executive officers or
stockholders of Antenna, or the investment bankers, attorneys, or other advisors
or representatives retained by Antenna from participating in any discussions or
negotiations with, or furnishing any information to, any third party that makes
a Takeover Proposal if all of the following events shall have occurred: (i)
Andrew has been notified in writing of such Takeover Proposal within 24 hours of
Antenna's receipt thereof, including the identity of the party making the
Takeover Proposal and the specific terms and conditions thereof, and has been
given copies of such Takeover Proposal; (ii) such third party has made a written
Takeover Proposal to the Board of Directors of Antenna, which Takeover Proposal
identifies a price or range of values to be paid and based on the advice of
Antenna's investment bankers, the Board of Directors of Antenna has determined
that such Takeover Proposal is financially more favorable to the stockholders of
Antenna than the terms of the Merger; (iii) Antenna's Board of Directors has
determined, based on the advice of Antenna's investment bankers, that such third
party is financially capable of consummating the transactions specified in the
Takeover Proposal; and (iv) the Board of Directors of Antenna has determined,
after consultation with its outside legal counsel, that its fiduciary duties
require it to furnish information to and negotiate with such third party.
Notwithstanding the foregoing, Antenna shall not provide any non-public
information to such third party unless (x) prior to the date thereof Antenna has
provided such information to Andrew; (y) Antenna has notified Andrew in advance
of any such proposed disclosure of non-public information and has provided
Andrew with a description of the information Antenna intends to disclose; and
(z) Antenna provides such non-public information pursuant to a nondisclosure
agreement with terms which are at least as restrictive as the Confidentiality
Agreement.
(c) In addition to the foregoing requirements, Antenna shall not accept
or enter into any agreement concerning a Takeover Proposal until at least 48
hours after Andrew's receipt of a copy of such Takeover Proposal. Upon
compliance with the requirements in the foregoing paragraph (b) and this
paragraph (c), Antenna shall be entitled to terminate this Agreement in
accordance with the provisions of Section 8.1(d).
(d) For purposes of this Agreement, "Takeover Proposal" means any
proposal or offer for a merger, consolidation or other business combination
involving Antenna or any proposal or offer to acquire a material equity interest
in, or a substantial portion of the assets of, Antenna or the Antenna
Subsidiaries, other than by Andrew as contemplated by this Agreement.
(e) The Company shall be entitled to furnish a copy of this Section 6.8
to any third party who expresses an interest in making a Takeover Proposal after
the execution of this Agreement.
6.9. Tax Matters. Antenna and Andrew agree as follows:
<PAGE>
(a) Consistency. Antenna and Andrew will not, and Antenna will use its
best efforts to cause its stockholders not to, file any tax return, make any
disclosure or otherwise take any position or any action that is inconsistent
with the Merger qualifying as a reorganization under Section 368(a)(1)(A) of the
Code or would alone or in conjunction with any other action cause the Merger to
not qualify as a reorganization under Section 368(a)(1)(A) of the Code. Antenna
and Andrew will, and Antenna will use its best efforts to cause its stockholders
to, file all Returns and take such other actions as may be required for the
Merger to qualify as a reorganization under Section 368(a)(1)(A) of the Code and
to comply with the regulations under Section 368 of the Code as they apply to
the Merger.
(b) Continuity of Business Enterprise. Andrew will cause the historic
business of Antenna to be continued or will cause a significant portion of the
historic business assets of Antenna to be used in a trade or business in a
manner sufficient to comply with the continuity of business enterprise
requirements set forth in Treasury Regulation 1.368-1(d) under Section 368 of
the Code.
(c) Reacquisition of Shares. Neither Andrew nor any of its affiliates
have any plan or present intention to reacquire any of the shares of Andrew
Common Stock issued in the Merger.
6.10. Exchange Act Reports. Andrew will make timely filings of all
documents and reports required to be filed by it pursuant to the Exchange Act.
6.11. Combined Operations Financial Statements. If the Closing occurs
after February 29, 1996, Andrew will file, not later than the fifteenth day
following the last day of the first complete calendar month following the
Closing, provided such month is the first month of the quarter, a report on
Form 8-K which includes financial results of Andrew covering a period of at
least 30 days of post-Merger combined operations of Andrew and Antenna
sufficient to allow "affiliates" of Antenna to sell shares of Andrew received in
connection with the Merger pursuant to the provisions of Accounting Series
Release No. 135, as amended by Staff Accounting Bulletin Nos. 65 and 76.
ARTICLE VII.
CONDITIONS PRECEDENT
7.1. Conditions to Each Party's Obligation To Effect the Merger. The
respective obligation of each party to effect the Merger shall be subject to the
satisfaction at or prior to the Effective Time of the following conditions:
<PAGE>
(a) Approvals and Consents. All regulatory approvals required to
consummate the transactions contemplated hereby shall have been obtained and
shall remain in full force and effect and all statutory waiting periods in
respect thereof shall have expired (all such approvals and the expiration of all
such waiting periods being referred to herein as the "Requisite Regulatory
Approvals"), and all consents necessary to transfer all of Antenna's rights,
title and interest to its facilities located on Maplewood Drive in Itasca,
Illinois shall have been obtained in accordance with the lease thereof, and
shall remain in full force and effect.
(b) S-4. The S-4 shall have become effective under the Securities Act
and no stop order suspending the effectiveness of the S-4 shall have been issued
and no proceedings for that purpose shall have been initiated or threatened by
the SEC.
(c) NNM Listing. The shares of Andrew Common Stock which shall be
issued to the stockholders of Antenna upon consummation of the Merger shall have
been authorized for listing on the NNM, subject to official notice of issuance.
(d) Blue Sky. Andrew shall have received all state securities or
"blue sky" permits and other authorizations necessary to issue the shares of
Andrew Common Stock pursuant to this Agreement and the Merger.
(e) No Injunctions or Restraints; Illegality. No order, injunction or
decree issued by any Governmental Authority or other legal restraint or
prohibition preventing the consummation of the Merger or any of the other
transactions contemplated by this Agreement shall be in effect. No law, statute,
rule, regulation, order, injunction or decree shall have been enacted, entered,
promulgated or enforced by any Governmental Authority which prohibits,
materially restricts or makes illegal the consummation of the Merger or the
other transactions contemplated by this Agreement.
(f) Antenna Stockholder Approval. This Agreement and the transactions
contemplated hereby shall have been approved by holders owning 66-2/3% or more
of the issued and outstanding shares of Antenna Common Stock.
7.2. Conditions to Obligations of Andrew. The obligation of Andrew to
effect the Merger is also subject to the satisfaction or waiver by Andrew at or
prior to the Effective Time of the following conditions:
(a) Representations and Warranties. The representations and warranties
of Antenna set forth in this Agreement that are qualified with reference to a
Material Adverse Effect or materiality shall be true and correct, and the
representations and warranties of Antenna that are not so qualified shall be
true and correct in all material respects, in each case as of the date of this
Agreement and (except to the extent such representations and warranties speak as
of an earlier date) as of the Closing Date as though made on and as of the
Closing Date. Andrew shall have received a certificate signed on behalf of
Antenna by the President and the Vice President-Operations, to the foregoing
effect.
<PAGE>
(b) Performance of Obligations of Antenna. Antenna shall have performed
in all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing Date, and Andrew shall have received a
certificate signed on behalf of Antenna by the President, and the Vice
President-Operations to such effect.
(c) Dissenters Rights. No holder of Antenna Common Stock shall have
validly exercised its "dissenters rights" pursuant to Sections 11.65 and 11.70
of the Illinois Business Corporation Act of 1983, as amended (the "IBCA").
(d) Antenna Technologies Inc. Antenna Technologies Inc., an Illinois
corporation ("ATI"), shall have been dissolved in accordance with the provisions
of the IBCA and the Secretary of State of Illinois shall have issued a
certificate of dissolution applicable to ATI. No actions shall have been taken
by ATI, its directors or its shareholders to revoke such dissolution.
(e) Stockholder Agreements. Andrew shall have received either (i)
executed letter agreements substantially in the form attached as Exhibit B from
each stockholder of Antenna, or (ii) a legal opinion from McDermott, Will &
Emery, counsel to Antenna, in form and substance satisfactory to Andrew and its
counsel, opining that any stockholder or any group of stockholders of Antenna
that has failed to execute and deliver such an agreement is not deemed to be an
"affiliate" of Antenna for purposes of Rule 145 under the Securities Act or
otherwise pursuant to SEC accounting releases with respect to "pooling of
interests" accounting treatment.
(f) Non-Competition and Confidentiality Agreements. Roger K. Fisher
and William A. Hamilton shall have each executed and delivered to Andrew a
non-competition and confidentiality agreement substantially in the form attached
as Exhibit C.
(g) Pooling of Interests Letter. Andrew shall have received from Ernst
& Young LLP a letter dated on or about the date that is two business days prior
to the date the Proxy Statement/Prospectus that forms a part of the S-4 is first
mailed to stockholders of Antenna, in form and substance acceptable to Andrew,
to the effect that the business combination to be effected by the Merger will
qualify for accounting as a "pooling of interests" by Andrew for purposes of its
consolidated financial statements under GAAP and applicable SEC rules and
regulations, and such letter shall not have been withdrawn or modified in any
material respect on the Closing Date. No action shall have been taken or
proposed by any Governmental Authority, and no statute, rule, regulation or
order shall have been enacted, promulgated, issued or proposed by any
Governmental Authority that would prevent Andrew from accounting for the
business combination to be effected by the Merger as a pooling of interests.
<PAGE>
(h) Legal Opinion; Closing Certificates. Andrew shall have received
from McDermott, Will & Emery, counsel to Antenna, an opinion substantially in
the form attached as Exhibit D, together with such customary closing documents
and certificates as Andrew or its counsel shall reasonably request.
(i) Federal Tax Opinion. Andrew shall have received an opinion of
Gardner, Carton & Douglas, in form and substance reasonably satisfactory to
Andrew, on or about the date that is two business days prior to the date the S-4
is first mailed to stockholders of Antenna, substantially to the effect that the
Merger will constitute a tax free reorganization under Section 368(a)(1)(A) of
the Code and Antenna and Andrew will each be a party to the reorganization and
such opinion shall not have been withdrawn or modified in any material respect
on the Closing Date. In rendering such opinion, counsel may require and rely
upon representations contained in certificates of officers of Andrew, Antenna,
stockholders of Antenna and others.
(j) Certifications. Andrew and Gardner, Carton & Douglas, counsel to
Andrew, shall have received (i) a certificate from Antenna substantially in the
form attached as Exhibit E, and (ii) certificates from each stockholder of
Antenna substantially in the form attached as Exhibit F.
(k) Material Adverse Change. There shall not have occurred any change
which would constitute a Material Adverse Effect on Antenna and the Antenna
Subsidiaries, taken as a whole.
7.3. Conditions to Obligations of Antenna. The obligation of Antenna
to effect the Merger is also subject to the satisfaction or waiver by Antenna at
or prior to the Effective Time of the following conditions:
(a) Representations and Warranties. The representations and warranties
of Andrew set forth in this Agreement that are qualified with a reference to
materiality shall be true and correct, and the representations and warranties of
Andrew that are not so qualified shall be true and correct in all material
respects, in each case, as of the date of this Agreement and (except to the
extent such representations and warranties speak as of an earlier date) as of
the Closing Date as though made on and as of the Closing Date. Antenna shall
have received a certificate signed on behalf of Andrew by the Chief Executive
Officer or the Chief Financial Officer of Andrew to the foregoing effect.
(b) Performance of Obligations of Andrew. Andrew shall have performed
in all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing Date, and Antenna shall have received
a certificate signed on behalf of Andrew by the Chief Executive Officer or the
Chief Financial Officer of Andrew to such effect.
<PAGE>
(c) Legal Opinion; Closing Certificates. Antenna shall have received
from Gardner, Carton & Douglas, counsel to Andrew, an opinion substantially in
the form attached as Exhibit G together with such customary closing documents
and certificates as Antenna or its counsel shall reasonably request.
(d) Federal Tax Opinion. The stockholders of Antenna shall have
received an opinion of McDermott, Will & Emery, in form and substance reasonably
satisfactory to them on or about the date that is two business days prior to the
date the Proxy Statement/Prospectus that forms a part of the S-4 is first mailed
to stockholders of Antenna, substantially to the effect that:
(i) The Merger will constitute a tax free reorganization under
Section 368(a)(1)(A) of the Code and Antenna and Andrew will each be a
party to the reorganization;
(ii) No gain or loss will be recognized by the stockholders of
Antenna who exchange their Antenna Common Stock for Andrew Common Stock
pursuant to the Merger (except with respect to cash received in lieu of
a fractional share interest in Andrew Common Stock);
(iii) The tax basis of the Andrew Common Stock received by
stockholders who exchange all of their Antenna Common Stock for Andrew
Common Stock in the Merger will be the same as the tax basis of the
Antenna Common Stock surrendered in exchange therefor (reduced by any
amount allocable to a fractional share interest for which cash is
received);
(iv) The holding period for capital gains purposes of Andrew
Common Stock received by stockholders of Antenna in the Merger will
include the period during which the shares of Antenna Common Stock
surrendered in exchange therefor were held, provided such Antenna
Common Stock was held as a capital asset by the holder of such Antenna
Common Stock at the Effective Time; and
(v) The discussion in the S-4 under the caption "The Merger --
Certain Federal Income Tax Consequences" insofar as it relates to
matters of federal income tax law is a fair and accurate summary of
such matters.
and such opinion shall not have been withdrawn or modified in any material
respect on the Closing Date. In rendering such opinion, counsel may require and
rely upon representations contained in certificates of officers of Antenna,
stockholders of Antenna, Andrew and others.
(e) Material Adverse Change. There shall not have occurred any change
which would constitute a Material Adverse Effect on Andrew and its subsidiaries,
taken as a whole.
<PAGE>
ARTICLE VIII.
TERMINATION AND AMENDMENT
8.1. Termination. This Agreement may be terminated at any time prior
to the Effective Time, whether before or after approval of the Merger by the
stockholders of Antenna:
(a) by mutual consent of Antenna and Andrew in a written instrument,
if the Board of Directors of each so determines by a vote of a majority of the
members of its entire Board;
(b) by either the Board of Directors of Antenna or the Board of
Directors of Andrew if any Governmental Authority which must grant a Requisite
Regulatory Approval has denied approval of the Merger, or any Governmental
Authority of competent jurisdiction shall have issued an order permanently
enjoining or otherwise prohibiting the consummation of the transactions
contemplated by this Agreement;
(c) by either the Board of Directors of Antenna or the Board of
Directors of Andrew (provided that the terminating party is not then in material
breach of any representation, warranty, covenant or other agreement contained
herein) if (x) there shall have been a material breach of any of the
representations or warranties or any of the covenants or agreements set forth in
this Agreement on the part of the other party, which breach is not cured within
30 days following written notice to the party committing such breach, or which
breach, by its nature or timing, cannot be cured prior to the Closing Date, (y)
the Closing shall not have occurred on or before March 1, 1996; provided,
however, that neither Board of Directors shall be entitled to terminate the
Agreement pursuant to this clause (y) if the reason the Closing has not occurred
by such date is because any Governmental Authority which must grant a Requisite
Regulatory Approval has failed to act, the S-4 shall have been filed but shall
not yet have been declared effective, the Antenna stockholder meeting shall not
have occurred in accordance with the requirements of the IBCA or some similar
event beyond the control of both parties shall not have occurred by such date,
or (z) the Closing shall not have occurred on or before May 31, 1996;
(d) by the Board of Directors of Antenna (after consulting with its
legal counsel), if such action is required for the Board of Directors to comply
with its fiduciary duties to Antenna and its stockholders; provided, however, if
such action is taken by Antenna, then (i) within 2 days of such termination
Antenna shall pay to Andrew $400,000 as reimbursement for Andrew's out-of-pocket
expenses incurred in connection with the transactions contemplated by this
Agreement (for which Andrew shall not be required to account); and (ii) if
Antenna shall consummate any transaction pursuant to a Takeover Proposal (x)
within 15 months following the date of this Agreement, or (y) pursuant to a
definitive agreement executed by Antenna during such 15-month period, Antenna
shall also promptly pay to Andrew $1,500,000 upon the occurrence of such
transaction; or
<PAGE>
(e) by Antenna if the Andrew Stock Value is less than $38.00.
8.2. Effect of Termination. In the event of termination of this
Agreement by either Antenna or Andrew as provided in Section 8.1, this Agreement
shall forthwith become void and have no effect, and none of Antenna, Andrew, any
of their respective subsidiaries or any of their directors or officers shall
have any liability of any nature whatsoever hereunder, or in connection with the
transactions contemplated hereby, except that (i) Sections 8.1(d) and 9.1, this
Section 8.2 and the last sentence of Section 6.2, shall survive any termination
of this Agreement, and (ii) notwithstanding anything to the contrary contained
in this Agreement, neither Antenna nor Andrew shall be relieved or released from
any liabilities or damages arising out of its willful breach of any provision of
this Agreement.
8.3. Amendment; Extension; Waiver. At any time prior to the Effective
Time, the parties hereto, by action taken or authorized by their respective
Board of Directors, may, to the extent legally allowed, (i) amend any term or
provision of this Agreement, (ii) extend the time for the performance of any of
the obligations or other acts of the parties hereto, (iii) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (iv) waive compliance with any of the
agreements or conditions contained herein; provided, however, that after any
approval of the transactions contemplated by this Agreement by the stockholders
of Antenna, there may not be, without further approval of such stockholders, any
amendment, extension or waiver of this Agreement which reduces the amount or
changes the form of the consideration to be delivered to the holders of Antenna
Common Stock hereunder other than as contemplated by this Agreement. Any
agreement on the part of a party hereto to any such amendment, extension or
waiver shall be valid only if set forth in a written instrument signed on behalf
of such party, but such amendment, extension or waiver or failure to insist on
strict compliance with any obligation, covenant, agreement or condition in this
Agreement shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
ARTICLE IX.
GENERAL PROVISIONS
9.1. Expenses. Except as set forth in Section 8.1(d), all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expense, provided,
however, that all filing and other fees paid to the SEC and state securities
agencies in connection with the S-4 shall be borne by Andrew.
<PAGE>
9.2. Notices. All notices and other required communications hereunder
shall be in writing and shall be deemed given: if delivered personally, when so
delivered; if telecopied, on the date telecopied, provided there is written
confirmation of receipt and a confirming notice or communication is delivered in
the manner set forth herein); if mailed by registered or certified mail (postage
prepaid and return receipt requested), on the date five days after deposit in
the mail; or if delivered by overnight courier (with written confirmation of
delivery to such courier), on the next business after such delivery, in each
case to the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
(a) if to Andrew, to:
Andrew Corporation
10500 West 153rd Street
Orland Park, Illinois 60462
Attention: Charles R. Nicholas
Executive Vice President; Chief Financial Officer
Fax: (708) 873-2571
with a copy to:
Gardner, Carton & Douglas
321 North Clark Street, Suite 3400
Chicago, Illinois 60610
Attention: Dewey B. Crawford
Fax: (312) 644-3381
and
(b) if to Antenna, to:
The Antenna Company
1100 Maplewood Drive
Itasca, Illinois 60143
Attention: Mr. Roger K. Fisher, President
Fax: (708) 250-8269
with a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Attention: Thomas J. Murphy
Fax: (312) 984-3669
<PAGE>
9.3. Interpretation. When a reference is made in this Agreement to
Sections, Schedules or Exhibits, such reference shall be to a Section of or
Schedule or Exhibit to this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." No provision of this Agreement shall be construed to require
Andrew, Antenna or any of their respective subsidiaries or affiliates to take
any action which would violate any applicable law, rule or regulation.
9.4. Counterparts. This Agreement may be executed in counterparts, all
of which shall be considered one and the same agreement.
9.5. Entire Agreement. This Agreement (including the Disclosure
Schedule, Exhibits, documents and instruments referred to herein) constitutes
the entire agreement of the parties and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof other than the Confidentiality Agreement.
9.6. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without regard to any
applicable conflicts of law which would result in the application of any
other law.
9.7. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
9.8. Publicity. Except as otherwise required by applicable law or the
rules of the NNM, neither Antenna nor Andrew shall, or shall permit any of their
respective subsidiaries to, issue or cause the publication of any press release
or other public announcement with respect to, or otherwise make any public
statement concerning, the transactions contemplated by this Agreement without
the prior consent of the other party, which consent shall not be unreasonably
withheld.
<PAGE>
9.9. Assignment; Third Party Beneficiaries. Neither this Agreement nor
any of the rights, interests or obligations set forth herein shall be assigned
by either of the parties (whether by operation of law or otherwise) without the
prior written consent of the other party. Subject to the preceding sentence,
this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns. This
Agreement (including the Disclosure Schedule, Exhibits, documents and
instruments referred to herein) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
9.10. Knowledge and Awareness. As used in this Agreement, "knowledge"
or "awareness" of any entity means the actual knowledge or awareness of such
entity's officers and other persons exercising supervisory authority, and such
knowledge or awareness as such entity's officers and other persons exercising
supervisory authority should have had after reasonable investigation. Whenever
the term "knowledge" or "awareness" is used to refer to the "knowledge" or
"awareness" of Antenna, such term shall include the "knowledge" or "awareness"
of the officers and other persons exercising supervisory authority over Antenna
and the Antenna Subsidiaries and the stockholders of Antenna who are active in
the business of Antenna and the Antenna Subsidiaries.
9.11. Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumptions or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement. Any reference to any Federal, state,
county, local or foreign law or statute shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context requires
otherwise.
9.12. Pooling of Interests Accounting; Tax Free Reorganization. In the
event that either Andrew or Antenna becomes aware of any provisions of this
Agreement which would prevent the Merger from being accounted for as a pooling
of interests or qualifying as a reorganization within the meaning of Section 368
of the Code, such parties shall negotiate in good faith with a view toward
amending this Agreement in a manner which would permit the Merger to be
accounted for as a pooling of interests or qualified as such a reorganization,
as applicable.
IN WITNESS WHEREOF, Antenna and Andrew have caused this AGREEMENT AND
PLAN OF MERGER to be executed by their respective officers thereunto duly
authorized as of the date first above written.
ANDREW CORPORATION THE ANTENNA COMPANY
By: /s/ F. L. English By: /s/ Roger K. Fisher
--------------------------------- --------------------
Floyd L. English Roger K. Fisher
Chairman, President and Chief President
Executive Officer
<PAGE>
EXHIBIT A
CERTIFICATE OF MERGER
OF
THE ANTENNA COMPANY
INTO
ANDREW CORPORATION
Andrew Corporation, a Delaware Corporation, hereby certifies that:
FIRST: The name and state of incorporation of each of the constituent
corporations is as follows:
State of
Name Incorporation
Andrew Corporation Delaware
The Antenna Company Illinois
SECOND: An Agreement and Plan of Merger dated January ___, 1996 has been
approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of Section
252(c) of the General Corporation Law of the State of Delaware.
THIRD: The name of the surviving corporation is Andrew Corporation.
FOURTH: The Certificate of Incorporation of Andrew Corporation as in
effect on the date of filing of this certificate shall be the Certificate
of Incorporation of the surviving corporation.
FIFTH: The executed Agreement and Plan of Merger is on file at the
principal place of business of Andrew Corporation, the surviving corporation,
the address of which is 10500 West 153rd Street, Orland Park, Illinois 60462.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation, on request and without cost, to any stockholder of either
constituent corporation.
SEVENTH: The authorized capital stock of The Antenna Company is 100,000
shares of Common Stock, $.10 par value.
<PAGE>
IN WITNESS WHEREOF, Andrew Corporation has caused this certificate to be
duly executed by its officers thereunto duly authorized this ____ day
of _____________ 1996.
ANDREW CORPORATION
By:
Charles R. Nicholas
Executive Vice President;
Chief Financial Officer
ATTEST:
James F. Petelle
Secretary
<PAGE>
EXHIBIT B
FORM OF AFFILIATE LETTER
_____________, 1996
Andrew Corporation
10500 West 153rd Street
Orland Park, Illinois 60464
Ladies and Gentlemen:
I have been advised that as of the date of this letter I may be deemed
to be an "affiliate" of The Antenna Company, an Illinois corporation
("Antenna"), as the term "affiliate" is defined within the meaning of Rule 145
of the rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, (the "Act"). Pursuant to the terms of the Agreement and Plan of Merger
dated January ___, 1996 (as amended from time to time, the "Agreement"), between
Andrew Corporation, a Delaware corporation ("Andrew") and Antenna, Antenna shall
merge with and into Andrew (the "Merger").
In connection with the Merger, I may be entitled to receive shares of
common stock, par value $0.01 per share, of Andrew (the "Andrew Common Stock")
in exchange for shares of Antenna common stock, par value $0.10 per share (the
"Antenna Common Stock").
I represent and warrant to, and covenant with, Andrew that in the event
I receive any Andrew Common Stock as a result of the Merger:
(a) I shall not make any sale, transfer or other disposition of the
Andrew Common Stock in violation of the Act or the Rules and Regulations.
(b) I have carefully read this letter and the Agreement and, to the
extent I felt necessary, I have discussed the requirements of such documents and
other applicable limitations upon my ability to sell, transfer or otherwise
dispose of Andrew Common Stock with my counsel or counsel for Antenna.
(c) I have been advised that any shares of Andrew Common Stock issued
to me pursuant to the Merger have been registered with the Commission under the
Act on a Registration Statement on Form S-4. However, I have been advised that
at the time the Merger is submitted for a vote of the stockholders of Antenna, I
may be deemed to be an affiliate of Antenna, and other than as set forth in the
Agreement, the distribution by me of the Andrew Common Stock has not been
registered under the Act. Therefore, I will not sell, transfer or otherwise
dispose of any Andrew Common Stock issued to me in the Merger unless such sale,
transfer or other disposition is made in conformity with the volume and other
limitations of Rule 145 promulgated by the Commission under the Act, and either
such sale, transfer or other disposition has been made (i) pursuant to an
effective registration statement under the Act, or (ii) in a transaction that in
the opinion of counsel is exempt from registration under the Act.
<PAGE>
(d) I understand that Andrew is under no obligation to register the
sale, transfer or other disposition of the Andrew Common Stock by me or on my
behalf under the Act, or to take any other action necessary in order to make
compliance with an exemption from such registration available.
(e) I further represent to, and covenant with, Andrew that I will not,
during the 30 days prior to the Effective Time (as defined in the Agreement),
sell, transfer or otherwise dispose of Antenna Common Stock or shares of the
capital stock of Andrew that I may hold and, furthermore, that I will not sell,
transfer or otherwise dispose of Andrew Common Stock received by me in the
Merger or any other shares of the capital stock of Andrew until after such time
as results covering at least 30 days of the combined operations of Antenna and
Andrew have been published by Andrew, in the form of a quarterly earnings
report, an effective registration statement filed with the Commission, a report
filed with the Commission on Form 10-K, 10-Q, or 8-K, or any other public filing
or announcement which includes such combined results of operations, and I
understand that Andrew may place on the certificates of Common Stock issued to
me a legend to the foregoing effect.
Execution of this letter is not an admission on my part that I am an
"affiliate" of Antenna as described in the first paragraph of this letter, or as
a waiver of any rights I may have to object to any claim that I am such an
affiliate on or after the date of this letter.
Sincerely yours,
Name:
Accepted this ___ day of
_______________, 1996
ANDREW CORPORATION
By:
Name:
Title:
<PAGE>
EXHIBIT C
FORM OF
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
THIS CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (the
"Agreement") is entered into as of ___________, 1996, by and between [Roger K.
Fisher/William A. Hamilton] (the "Stockholder") and ANDREW CORPORATION, a
Delaware corporation ("Andrew").
R E C I T A L S:
WHEREAS, Andrew and the Antenna Company, an Illinois
corporation ("Antenna"), have entered into an Agreement and Plan of Merger dated
as of ________, 1996 (the "Merger Agreement"), pursuant to which Antenna will be
merged with and into Andrew.
WHEREAS, Antenna is engaged in the design, assembly, testing,
packaging, marketing, sale and distribution of antenna products and cellular
phone accessories (the "Acquired Business").
WHEREAS, the Stockholder owns certain shares of the Antenna
capital stock, and also serves as an officer and director of Antenna;
WHEREAS, in his role as a significant stockholder and an
officer and director of Antenna, the Stockholder has acquired confidential and
proprietary business information and trade secrets relating to Antenna and the
Acquired Business, which information and trade secrets form a substantial and
valuable asset to Andrew.
WHEREAS, as a condition to Andrew's obligations under the
terms of the Merger Agreement, and as an incentive for Andrew to undertake such
obligations, Andrew desires to bind the Stockholder to certain restrictive
covenants and Stockholder agrees to be so bound, on the terms and conditions set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Andrew and the
Stockholder agree as follows:
<PAGE>
1. Non-Competition. The Stockholder acknowledges and agrees that he has
learned valuable trade secrets and other proprietary information regarding
Antenna and the Acquired Business, and that Andrew would be irreparably damaged
if the Stockholder were to provide services to any person or entity in violation
of the restrictions contained in this Agreement. Accordingly, as an inducement
for Andrew to enter into and consummate the transactions contemplated by the
Merger Agreement, the Stockholder agrees that for a period of two years from the
later of the date hereof or the date on which Stockholder ceases to be an
employee of Andrew (the "Restricted Period"), neither the Stockholder nor any
Affiliate (as defined below) of the Stockholder shall, directly or indirectly,
either for himself or itself or for any other person or entity:
(a) engage or participate in, or assist or advise (whether as
a stockholder, owner, partner, employee, officer, director, advisor,
consultant or agent), or permit his or its name to be used by, or render
services for, any person or entity that is engaged in a Competing
Business (as defined below) in the Market Area (as defined below);
provided, however, that nothing in this Agreement shall prevent the
Stockholder from acquiring or owning, as a passive investment, up to two
percent (2%) of the outstanding voting securities of an entity engaged
in a Competing Business which are publicly traded on any recognized
national securities market;
(b) take any action in the Market Area in connection with a
Competing Business which might divert from Andrew or any of its
Affiliates any opportunity which would be within the scope of Andrew's
or such Affiliate's business as then conducted or, to the Stockholder's
knowledge, proposed to be conducted;
(c) solicit or attempt to solicit any customer of Andrew or
any of its Affiliates to purchase Competing Products or Services (as
defined below) from any person or entity (other than Andrew or such
Affiliate);
(d) solicit or attempt to solicit any supplier, licensor,
licensee or other business relation of Andrew or any Affiliate thereof
to cease doing business with Andrew or any of its Affiliates; or
(e) directly or indirectly solicit or hire, or attempt to
solicit or hire, any person or entity who is a director, officer,
employee or agent of Andrew or any of its Affiliates to perform
services for any entity other than Andrew or such Affiliate.
<PAGE>
As used herein, a "Competing Business" shall mean a business which
engages or is making plans to engage in the manufacture, marketing or
distribution of products, or the performance, marketing or sale of services,
which are competitive with, similar to, or may be used as substitutes for, any
products or services of Andrew or any of its Affiliates, including, but not
limited to those products and services of Antenna and the Acquired Business,
whether (i) in the case of products, such products are or were manufactured by
or for Andrew or an Affiliate thereof for sale, or purchased as finished goods
for resale, or (ii) in the case of services, such services were performed by
Andrew or an Affiliate thereof, or by another company or person on behalf of
Andrew or such Affiliate; the products and services subject to these restrictive
covenants being referred to herein as "Competing Products and Services." As used
herein, "Market Area" shall mean the State of Illinois, any other State in the
United States wherein Andrew or any of its Affiliates conducts operations, or
any other country wherein Andrew or any of its Affiliates conducts operations.
As used herein, an "Affiliate" shall mean any person or entity which controls a
party, which such party controls or which is under common control with such
party. "Control" means the power, direct or indirect, to influence or cause the
direction of the management and policies of a person or entity through voting
securities, contract or otherwise.
2. Disclosure of Confidential Information. Andrew and the Stockholder
recognize that it is fundamental to the business and operations of Andrew and
its Affiliates to preserve the specialized knowledge, trade secrets, and
Confidential Information (as defined below) of Antenna concerning the
communications industry, including the research, development, production,
assembly, marketing, distribution and sale of communications equipment. As a
result of his prior role in Antenna's operations, the Stockholder has obtained
specialized knowledge, trade secrets and confidential information such as that
described herein about the Acquired Business, Antenna and its Affiliates.
Therefore, the Stockholder agrees that:
(a) The Stockholder shall keep secret and retain in strict
confidence, and shall not use, disclose to others, or publish any
secret or confidential information relating to the Acquired Business,
the operations or other affairs of Antenna, Andrew or their Affiliates,
including confidential information concerning the marketing practices,
pricing practices, costs, profit margins, customer lists, products,
methods, guidelines, procedures, engineering designs and standards,
design specifications, analytical techniques, technical information,
customer, client, vendor or supplier information, employee information,
and any and all other information protectible as a trade secret under
applicable law (collectively, the "Confidential Information"). The
obligations of the Stockholder hereunder shall not apply to any
information that has become public information without fault on the
part of the Stockholder, and shall not apply where the Stockholder's
disclosure of any such secret or confidential information is required
by law.
<PAGE>
(b) At the request of Andrew, the Stockholder shall, and shall
cause each of his Affiliates to make, execute and deliver all
applications, papers, assignments, conveyances, instruments or other
documents and shall perform or cause to be performed such other lawful
acts as Andrew may reasonably deem necessary or desirable to implement
any of the provisions of this Agreement, and shall give testimony and
cooperate with Andrew, its Affiliates or their representatives in any
controversy or legal proceedings involving Andrew, its Affiliates or
their representatives with respect to any Confidential Information.
3. Specific Performance. The Stockholder agrees that any violation by
him of Sections 1 or 2 of this Agreement would be highly injurious to Andrew and
its Affiliates and would cause irreparable harm. Therefore, if the Stockholder
breaches the provisions of Sections 1 or 2 of this Agreement, Andrew shall be
entitled to seek injunctive relief and a decree of specific performance against
the Stockholder. Andrew's right to seek such specific performance is
non-exclusive and shall be in addition to any other rights and remedies to which
it may be entitled. In the event the Stockholder breaches a covenant contained
in this Agreement, the Restricted Period applicable to the Stockholder with
respect to such breached covenant shall be extended for the period of such
breach.
4. Reformation. The Stockholder acknowledges that the territorial, time
and scope limitations set for in Section 1 and 2, as applicable, are reasonable
and are properly required for the protection of Andrew. In the event any
territorial, time or scope limitation contained in this Agreement is deemed to
be unreasonable by a court of competent jurisdiction, Andrew and the Stockholder
agree that such term shall be reduced to an area, period or scope as such court
shall deem reasonable under the circumstances.
5. Notice. All notices and other required communications hereunder
shall be in writing and shall be deemed given: if delivered personally, when so
delivered; if telecopied, on the date telecopied, provided there is written
confirmation of receipt and a confirming notice or communication is delivered in
the manner set forth herein; if mailed by registered or certified mail (postage
prepaid and return receipt requested), on the date five days after deposit in
the mail; or if delivered by overnight courier (with written confirmation of
delivery to such courier), on the next business after such delivery, in each
case to the parties at the following addresses:
(a) if to Andrew, to:
Andrew Corporation
10500 West 153rd Street
Orland Park, Illinois 60462
Attention: Charles R. Nicholas
Executive Vice President; Chief Financial Officer
Fax: (708) 873-2571
<PAGE>
with a copy to:
Gardner, Carton & Douglas
321 North Clark Street, Suite 3400
Chicago, Illinois 60610
Attention: Dewey B. Crawford
Fax: (312) 644-3381
and
(b) if to the Stockholder to:
with a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Attention: Thomas J. Murphy
Fax: (312) 984-3669
or at such other addresses or to such other addressees as may be
designated by notice given in accordance with the provisions hereof.
6. Counterparts. This Agreement may be executed in counterparts, all
of which shall be considered one and the same agreement.
7. Entire Agreement. This Agreement constitutes the entire agreement
of the parties and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
8. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Illinois, without regard to any
applicable conflicts of law rules which would result in the application of any
other law.
9. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
10. Assignment. Neither this Agreement nor any of the rights, interests
or obligations set forth herein shall be assigned by either of the parties
(whether by operation of law or otherwise); provided, however that Andrew shall
be allowed to assign its rights hereunder in connection with the transfer of all
or substantially all of Andrew's assets or capital stock to another party
(whether by sale, merger, consolidation or otherwise). Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
<PAGE>
11. Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumptions or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement. Any reference to any Federal, state,
county, local or foreign law or statute shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context requires
otherwise.
12. Interpretation. When a reference is made in this Agreement to
sections, such reference shall be to a section of this Agreement unless
otherwise indicated. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date set forth above.
ANDREW CORPORATION STOCKHOLDER
By:
Name: Name: [Roger K. Fisher/
Title: William A. Hamilton]
<PAGE>
EXHIBIT D
FORM OF LEGAL OPINION TO BE DELIVERED
BY SPECIAL COUNSEL TO ANTENNA
The legal opinion of McDermott, Will & Emery, special counsel to The
Antenna Company ("Antenna"), shall be to the effect that:
1. Antenna has been duly incorporated and is validly existing and in
good standing under the laws of the State of Illinois. Antenna has the corporate
power and authority to own or lease all of its properties and assets and to
carry on its business as it is now being conducted. Antenna is duly qualified to
do business and is in good standing as a foreign corporation under the laws of
the State of Texas.
2. Each Antenna Subsidiary has been duly incorporated and is validly
existing and in good standing under the laws of its jurisdiction of
organization, and has the corporate power and authority to own or lease all of
its properties and assets and to carry on its business as now being conducted.
3. The authorized capital stock of Antenna consists of 100,000 shares
of Antenna Common Stock, of which 9,000 shares are issued and outstanding. All
of the issued and outstanding shares of Antenna Common Stock have been duly
authorized and validly issued and are fully paid, nonassessable, free of
statutory preemptive rights, and, to such counsel's knowledge, free of any other
preemptive rights. To the knowledge of such counsel, Antenna does not have and
is not bound by any outstanding subscriptions, options, convertible securities,
warrants, calls, commitments or agreements of any character calling for the
purchase or issuance of any shares of its capital stock.
4. Antenna owns, directly or indirectly, all of the issued and
outstanding shares of capital stock of the Antenna Subsidiaries, free and clear
of any Liens, and all of such shares have been duly authorized and validly
issued and are fully paid and nonassessable. To the knowledge of such counsel no
Antenna Subsidiary has or is bound by any outstanding subscriptions, options,
convertible securities, warrants, calls, commitments or agreements of any
character calling for the purchase or issuance of any shares of its capital
stock or any other equity interest in such subsidiary.
5. Antenna has the corporate power and authority to execute and deliver
the Merger Agreement and to consummate the transactions contemplated thereby.
The execution and delivery of the Merger Agreement and the consummation of the
transactions contemplated thereby have been duly and validly approved by the
Board of Directors and stockholders of Antenna. No other corporate proceedings
on the part of Antenna are necessary to approve the Merger Agreement or to
consummate the transactions contemplated thereby. The Merger Agreement has been
duly and validly executed and delivered by Antenna and constitutes a valid and
binding obligation of Antenna, enforceable against Antenna in accordance with
its terms, subject to the following qualifications:
<PAGE>
(i) enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting
creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in equity or in law); and
(ii) such counsel need express no opinion with respect to the
enforceability of (a) Section 8.3 of the Merger Agreement to the extent
that it provides that provisions of the Merger Agreement may only be
waived in writing, or (b) Section 9.7 of the Merger Agreement to the
extent it states that the provisions of the Merger Agreement are
severable.
6. The execution and delivery of the Merger Agreement by Antenna, the
consummation by Antenna of the transactions contemplated thereby, and the
compliance by Antenna with the terms or provisions thereof, will not (i) violate
any provision of the Articles of Incorporation or By-Laws of Antenna, (ii)
constitute a violation of any Applicable Contracts, (iii) cause the creation of
any security interest or lien upon any of the property of Antenna pursuant to
any Applicable Contract, (iv) contravene any provision of any Applicable Law, or
(v) contravene any Applicable Order of any Governmental Authority against the
Company.
Reference to (i) "Applicable Laws" shall mean those laws, rules, and
regulations of the States of Illinois and Delaware and of the United States of
America which, in such counsel's experience, are normally applicable to
transactions of the type contemplated by the Merger Agreement; (ii)
"Governmental Authorities" shall mean any Illinois, Delaware, or federal
executive, legislative, judicial, administrative, or regulatory body; (iii)
"Applicable Orders" shall mean those orders or decrees of Governmental
Authorities identified on a schedule attached to such opinion which are the only
orders or decrees known to such counsel to be binding on Antenna; and (iv)
"Applicable Contracts" shall mean those agreements or instruments set forth on
Schedule 3.13 to the Merger Agreement.
7. Except for (i) the HSR Filing and the expiration of the waiting
period thereunder, (ii) the filing of the Certificate of Merger with the
Delaware Secretary pursuant to the DGCL, (iii) the filing of Articles of Merger
with the Illinois Secretary of State pursuant to the Illinois Business
Corporation Act of 1983, as amended, (iv) the approval of the Merger Agreement
by the requisite vote of the holders of Antenna Common Stock, and (v) the filing
with the SEC and declaration of effectiveness of the S-4, all of which filings,
expirations, approvals and declarations have been made, occurred or obtained, no
Consent of any Governmental Authority, is necessary in connection with the
execution and delivery by Antenna of the Merger Agreement and the consummation
by Antenna of the Merger and the other transactions contemplated thereby.
<PAGE>
8. To the knowledge of such counsel, there are no actions, suits,
proceedings, claims or investigations pending, or to the knowledge of counsel
after due inquiry, threatened against or affecting Antenna or any of the Antenna
Subsidiaries at law or in equity or before any Governmental Authority or
challenging the validity or propriety of the transactions contemplated by the
Merger Agreement.
9. ATI has been dissolved in accordance with the requirements of
the IBCA.
<PAGE>
EXHIBIT E
THE ANTENNA COMPANY
OFFICER'S CERTIFICATE
TO
ANDREW CORPORATION AND ITS COUNSEL
The Antenna Company ("Antenna") makes the representations and
warranties set forth below to Andrew Corporation ("Andrew") and its counsel,
Gardner, Carton & Douglas, in connection with the merger of Antenna into Andrew
(the "Merger") pursuant to the Agreement and Plan of Merger dated January __,
1996, between Andrew and Antenna (the "Agreement").
Antenna represents and warrants that:
1. The fair market value of the Andrew Common Stock and any other
consideration to be received by each Antenna shareholder ("Shareholder") will be
approximately equal to the fair market value of the Antenna stock surrendered in
the exchange.
2. There is no plan or intention by the Shareholders of Antenna to
sell, exchange, or otherwise dispose of a number of shares of Andrew Common
Stock to be received in the Merger that would reduce the Shareholders' ownership
of Andrew Common Stock to a number of shares having a value, as of the date of
the Merger, of less than 50% of the value of all of the stock of Antenna as of
the same date, or to enter into any transaction or agreement that would
eliminate substantially all of the economic benefits and burdens of the
beneficial ownership of any such shares. For purposes of this representation,
shares of Antenna stock to be exchanged for cash or other property, surrendered
by dissenters, or exchanged for cash in lieu of fractional shares of Andrew
Common Stock have been treated as outstanding Antenna stock on the date of the
Merger. In addition, shares of Antenna stock and shares of Andrew Common Stock
held by the Shareholders and otherwise sold, redeemed, or disposed of prior or
subsequent to the Merger have been considered in making this representation.
3. The liabilities of Antenna to be assumed by Andrew and the
liabilities to which the transferred assets of Antenna are subject were incurred
by Antenna in the ordinary course of its business.
4. The fair market value of the assets of Antenna to be transferred to
Andrew will equal or exceed the sum of the liabilities assumed by Andrew, plus
the amount of liabilities, if any, to which the transferred assets are subject.
<PAGE>
5. Immediately prior to the Merger, Antenna is not an investment
company within the meaning of Section 368(a)(2)(F) of the Internal Revenue Code
of 1986, as amended (the "Code"). A corporation is an "investment company" under
that provision of the Code if 50% or more of its assets (by value) consist of
stock or securities and 80% or more of its assets (by value) are held for
investment. For purposes of these 50% and 80% tests, however, stock of a
subsidiary corporation is ignored and the parent corporation is deemed to own a
ratable portion of its subsidiary's assets directly. (A corporation is a
subsidiary for this purpose if the parent owns 50% or more of its stock by vote
or value).
6. There is no intercorporate indebtedness existing between Antenna and
Andrew that was issued, acquired, or will be settled at a discount.
7. Antenna has not filed for protection from creditors under the U.S.
bankruptcy laws or otherwise made a general assignment of its assets for the
benefit of creditors.
8. Andrew, Antenna and the Shareholders will pay their respective
expenses, if any, incurred in connection with the Merger.
9. Antenna is entering into the Merger for business reasons and not for
the principal purpose of avoiding federal income tax.
10. Antenna has not declared dividends with respect to its stock which
are or will be unpaid at the time of the Merger.
11. The Merger will be consummated in compliance with the material
terms of the Agreement, and none of the material terms and conditions therein
has been waived or modified, and Antenna has no plan or intention to waive or
modify any such material condition. No side agreements exist between Antenna and
any of the Shareholders or Andrew related to the Merger which set forth terms or
conditions or call for payment of consideration by any party not set forth in
the Agreement.
Antenna acknowledges that Andrew is relying upon the truth and accuracy
of each of the foregoing representations and warranties in consummating the
Merger and that if any representation and warranty is untrue Andrew could suffer
significant financial harm. Antenna further acknowledges that Gardner, Carton &
Douglas is relying upon the truth and accuracy of each of the foregoing
representations and warranties as the basis, in part, for the delivery of its
opinion on the federal tax consequences of the Merger pursuant to Section 7.2(i)
of the Agreement.
IN WITNESS WHEREOF, Antenna, acting by an authorized officer and with
full corporate authority, has executed and delivered this Officer's Certificate
as of the _____ day of __________, 1996.
THE ANTENNA COMPANY
By: __________________________________
Its: __________________________________
<PAGE>
EXHIBIT F
THE ANTENNA COMPANY
SHAREHOLDER'S CERTIFICATE
TO
ANDREW CORPORATION AND ITS COUNSEL
I, _________________, a shareholder of The Antenna Company
("Antenna") make the representations and warranties set forth below to Andrew
Corporation ("Andrew") and its counsel, Gardner, Carton & Douglas, in connection
with the merger of Antenna into Andrew (the "Merger") pursuant to the Agreement
and Plan of Merger dated January __, 1996, between Andrew and Antenna (the
"Agreement").
I represent and warrant that:
1. I have no plan or intention to sell, exchange, or otherwise
dispose of a number of shares of Andrew Common Stock to be received by me in the
Merger that would reduce my ownership of Andrew Common Stock to a number of
shares having a value, as of the date of the Merger, of less than 50% of the
value of all Antenna stock owned by me as of the same date, and I have not
entered into and have no plan or intention to enter into any transaction or
agreement that would eliminate substantially all of the economic benefits and
burdens of the beneficial ownership of any such shares of Andrew Common Stock.
For purposes of this representation, shares of Antenna stock to be exchanged for
cash or other property have been treated as outstanding Antenna stock on the
date of the Merger and Antenna stock otherwise sold, redeemed or disposed of
prior to the Merger, or intended to be subsequent to the Merger, have been
considered.
2. I will pay the expenses, if any, incurred by me in my
capacity as a shareholder of Antenna in connection with the Merger.
3. To the best of my knowledge, no part of any consideration
paid or to be paid to me for services performed or to be performed by me for
Antenna or Andrew or pursuant to any contractual relationship between Antenna or
Andrew and me constitutes separate or additional consideration for the shares of
Antenna stock to be exchanged by me in the Merger, and no part of the Andrew
Common Stock to be issued to me pursuant to the Merger constitutes separate or
additional consideration attributable to such services or contractual
relationship.
<PAGE>
I understand that Andrew is relying upon the truth and
accuracy of each of the foregoing representations and warranties in consummating
the Merger and that if any representation and warranty is untrue, Andrew could
suffer significant financial harm. I further understand that Gardner, Carton &
Douglas is relying upon the truth and accuracy of each of the foregoing
representations and warranties as the basis, in part, for the delivery of its
opinion pursuant to Section 7.2(i) of the Agreement.
Dated: __________, 1996
------------------------------------
[Name of Antenna Shareholder]
<PAGE>
EXHIBIT G
FORM OF LEGAL OPINION TO BE DELIVERED
BY COUNSEL TO ANDREW
The legal opinion of Gardner, Carton & Douglas, counsel to Andrew
Corporation ("Andrew"), shall be to the effect that:
1. Andrew is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Andrew has the corporate power
and authority to own or lease all of its properties and assets and to carry on
its business as it is now being conducted.
2. The authorized capital stock of Andrew consists of 100,000,000
shares of Andrew Common Stock. All of the issued and outstanding shares of
Andrew Common Stock have been duly authorized and validly issued and are fully
paid, nonassessable and free of statutory preemptive rights. The shares of
Andrew Common Stock to be issued pursuant to the Merger have been duly
authorized and, at the Effective Time upon issuance pursuant to the Merger
Agreement, all such shares will be validly issued, fully paid, nonassessable and
free of statutory preemptive rights.
3. Andrew has the corporate power and authority to execute and deliver
the Merger Agreement and to consummate the transactions contemplated thereby.
The execution and delivery of the Merger Agreement and the consummation of the
transactions contemplated thereby have been duly and validly approved by the
Board of Directors of Andrew. No other corporate proceedings on the part of
Andrew are necessary to approve the Merger Agreement or to consummate the
transactions contemplated thereby. The Merger Agreement has been duly and
validly executed and delivered by Andrew and constitutes a valid and binding
obligation of Andrew, enforceable against Andrew in accordance with its terms,
except to the extent that enforcement may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws of
general application relating to or affecting the enforcement of the rights of
creditors or by equitable principles regardless of whether enforcement is sought
in a proceeding in equity or at law. We express no opinion as to the validity or
enforceability of any provision regarding choice of Delaware law to govern the
Merger Agreement.
<PAGE>
4. The execution and delivery of the Merger Agreement by Andrew, the
consummation by Andrew of the transactions contemplated thereby, and the
compliance by Andrew with the terms or provisions thereof, will not (i) violate
any provision of the Certificate of Incorporation or By-Laws of Andrew, (ii)
violate the Delaware General Corporation Law or any Federal or Illinois law,
rule or regulation that to the knowledge of such counsel is applicable to
transactions of the type contemplated by the Merger Agreement, (iii) contravene
any order or decree of any federal, Illinois or Delaware governmental authority
known by such counsel to be applicable to Andrew, or (iv) constitute a violation
of, or cause the creation of any lien pursuant to, any material license, lease,
contract, agreement or other instrument or obligation to which Andrew or any of
its subsidiaries is a party and which is filed as an exhibit to any filings or
reports with the SEC. Notwithstanding the preceding sentence, we express no
opinion as to whether the execution and delivery of the Merger Agreement by
Andrew, the consummation by Andrew of the transactions contemplated thereby or
the compliance by Andrew with the terms and provisions thereof will constitute a
breach of, or constitute a default under, any covenant or provision with respect
to financial ratios or tests or any aspect of the financial condition or results
of operations of Andrew contained in any agreement to which Andrew is a party.
5. Except for (i) the HSR Filing and the expiration of the waiting
period thereunder, (ii) the filing of the Certificate of Merger with the
Delaware Secretary pursuant to the DGCL, (iii) the filing of Articles of Merger
with the Illinois Secretary of State pursuant to the Illinois Business
Corporation Act of 1983 as amended, (iv) the filing with the SEC and declaration
of effectiveness of the S-4, (v) such filings and approvals as are required to
be made or obtained under the securities or "Blue Sky" laws of various states in
connection with the issuance of the shares of Andrew Common Stock pursuant to
this Agreement, and (vi) the filings and authorizations necessary to list the
shares of Andrew Common Stock issued pursuant to the Merger Agreement on the
NNM, all of which filings, expirations, approvals and declarations have been
made, occurred or obtained, no Consents from any federal, Illinois or Delaware
governmental authority are necessary in connection with the execution and
delivery by Andrew of the Merger Agreement and the consummation by Andrew of the
Merger and the other transactions contemplated by the Merger Agreement.
6. To our knowledge, based upon discussions with officers of Andrew,
there are no actions, suits, proceedings, claims or investigations pending or
threatened against or affecting Andrew or any of its subsidiaries at law or in
equity or before any federal, Illinois or Delaware governmental authority or
challenging the validity or propriety of the transactions contemplated by the
Merger Agreement which individually or in the aggregate could reasonably be
expected to result in a Material Adverse Effect to Andrew and its subsidiaries,
taken as a whole.
<PAGE>
APPENDIX B
ILLINOIS BUSINESS CORPORATION ACT -- SECTIONS 11.65 AND 11.70
5/11.65 RIGHT TO DISSENT. _ (a) A shareholder of a corporation is
entitled to dissent from, and obtain payment for his or her shares in the event
of any of the following corporate actions:
(1) consummation of a plan of merger or consolidation or a plan of
share exchange to which the corporation is a party if (i) shareholder
authorization is required for the merger or consolidation or the share exchange
by Section 11.20 or the articles of incorporation or (ii) the corporation is a
subsidiary that is merged with its parent or another subsidiary under Section
11.30;
(2) consummation of a sale, lease or exchange of all, or
substantially all, of the property and assets of the corporation other than in
the usual and regular course of business;
(3) an amendment of the articles of incorporation that materially
and adversely affects rights in respect of a dissenters' shares because it:
(i) alters or abolishes a preferential right of such shares;
(ii) alters or abolishes a right in respect of redemption,
including a provision respecting a sinking fund for the redemption or
repurchase, of such shares;
(iii) in the case of a corporation incorporated prior to January 1,
1982, limits or eliminates cumulative voting rights with respect to such shares;
or
(4) any other corporate action taken pursuant to a shareholder
vote if the articles of incorporation, by-laws, or a resolution of the board of
directors provide that shareholders are entitled to dissent and obtain payment
for their shares in accordance with the procedures set forth in Section 11.70 or
as may be otherwise provided in the articles, by-laws or resolution.
(b) A shareholder entitled to dissent and obtain payment for his
or her shares under this Section may not challenge the corporate action creating
his or her entitlement unless the action is fraudulent with respect to the
shareholder or the corporation or constitutes a breach of a fiduciary duty owed
to the shareholder.
(c) A record owner of shares may assert dissenters' rights as to
fewer than all the shares recorded in such person's name only if such person
dissents with respect to all shares beneficially owned by any one person and
notifies the corporation in writing of the name and address of each person on
whose behalf the record owner asserts dissenters' rights. The rights of a
partial dissenter are determined as if the shares as to which dissent is made
and the other shares recorded in the names of different shareholders. A
beneficial owner of shares who is not the record owner may assert dissenters'
rights as to shares held on such person's behalf only if the beneficial owner
submits to the corporation the record owner's written consent to the dissent
before or at the same time the beneficial owner asserts dissenters' rights.
<PAGE>
5/11.70 PROCEDURE TO DISSENT. _ (a) If the corporate action giving rise
to the right to dissent is to be approved at a meeting of shareholders, the
notice of meeting shall inform the shareholders of their right to dissent and
the procedure to dissent. If, prior to the meeting, the corporation furnishes to
the shareholders material information with respect to the transactions that will
objectively enable a shareholder to vote on the transaction and to determine
whether or not to exercise dissenters' rights, a shareholder may assert
dissenters' rights only if the shareholder delivers to the corporation before
the vote is taken a written demand for payment for his or her shares if the
proposed action is consummated, and the shareholder does not vote in favor of
the proposed action.
(b) If the corporate action giving rise to the right to dissent is
not to be approved at a meeting of shareholders, the notice to shareholders
describing the action taken under Section 11.30 or Section 7.10 shall inform the
shareholders of their right to dissent and the procedure to dissent. If, prior
to or concurrently with the notice, the corporation furnishes to the
shareholders material information with respect to the transaction that will
objectively enable a shareholder to determine whether or not to exercise
dissenters' rights, a shareholder may assert dissenters' rights only if he or
she delivers to the corporation within 30 days from the date of mailing the
notice a written demand for payment for his or her shares.
(c) Within 10 days after the date on which the corporate action
giving rise to the right to dissent is effective or 30 days after the
shareholder delivers to the corporation the written demand for payment,
whichever is later, the corporation shall send each shareholder who has
delivered a written demand for payment a statement setting forth the opinion of
the corporation as to the estimated fair value of the shares, the corporation's
latest balance sheet as of the end of a fiscal year ending not earlier than 16
months before the delivery of the statement, together with the statement of
income for that year and the latest available interim financial statements, and
either a commitment to pay for the shares of the dissenting shareholder at the
estimated fair value thereof upon transmittal to the corporation of the
certificate or certificates, or other evidence of ownership, with respect to
the shares, or instructions to the dissenting shareholder to sell his or her
shares within 10 days after delivery of the corporation's statement to the
shareholder. The corporation may instruct the shareholder to sell only if there
is a public market for the shares at which the shares may be readily sold. If
the shareholder does not sell within that 10 day period after being so
instructed by the corporation, for purposes of this Section the shareholder
shall be deemed to have sold his or her shares at the average closing price of
the shares, if listed on a national exchange, or the average of the bid and
asked price with respect to the shares quoted by a principal market maker, if
not listed on a national exchange, during that 10 day period.
(d) A shareholder who makes written demand for payment under this
Section retains all other rights of a shareholder until those rights are
cancelled or modified by the consummation of the proposed corporate action. Upon
consummation of that action, the corporation shall pay to each dissenter who
transmits to the corporation the certificate or other evidence of ownership of
the shares the amount the corporation estimates to be the fair value of the
shares, plus accrued interest, accompanied by a written explanation of how the
interest was calculated.
(e) If the shareholder does not agree with the opinion of the
corporation as to the estimated fair value of the shares or the amount of
interest due, the shareholder, within 30 days from the delivery of the
corporation's statement of value, shall notify the corporation in writing of the
shareholder's estimated fair value and amount of interest due and demand payment
for the difference between the shareholder's estimate of fair value and interest
due and the amount of the payment by the corporation or the proceeds of sale by
the shareholder, whichever is applicable because of the procedure for which the
corporation opted pursuant to subsection (c).
(f) If, within 60 days from delivery to the corporation of the
shareholder notification of estimate of fair value of the shares and interest
due, the corporation and the dissenting shareholder have not agreed in writing
upon the fair value of the shares and interest due, the corporation shall either
pay the difference in value demanded by the shareholder, with interest, or file
a petition in the circuit court of the county in which either the registered
office or the principal office of the corporation is located, requesting the
court to determine the fair value of the shares and interest due. The
corporation shall make all dissenters, whether or not residents of this State,
whose demands remain unsettled parties to the proceeding as an action against
their shares and all parties shall be served with a copy of the petition.
Nonresidents may be served by registered or certified mail or by publication as
provided by law. Failure of the corporation to commence an action pursuant to
this Section shall not limit or affect the right of the dissenting shareholders
to otherwise commence an action as permitted by law.
(g) The jurisdiction of the court in which the proceeding is
commenced under subsection (f) by a corporation is plenary and exclusive. The
court may appoint one or more persons as appraisers to receive evidence and
recommend decision on the question of fair value. The appraisers
have the power described in the order appointing them, or in any amendment to
it.
(h) Each dissenter made a party to the proceeding is entitled to
judgment for the amount, if any, by which the court finds that the fair value
of his or her shares, plus interest, exceeds the amount paid by the corporation
or the proceeds of sale by the shareholder, whichever amount is applicable.
(i) The court, in a proceeding commenced under subsection (f), shall
determine all costs of the proceeding, including the reasonable compensation and
expenses of the appraisers, if any, appointed by the court under subsection (g),
but shall exclude the fees and expenses of counsel and experts for the
respective parties. If the fair value of the shares as determined by the court
materially exceeds the amount which the corporation estimated to be the fair
value of the shares or if no estimate was made in accordance with subsection
(c), then all or any part of the costs may be assessed against the corporation.
If the amount which any dissenter estimated to be the fair value of the shares
materially exceeds the fair value of the shares as determined by the court, then
all or any part of the costs may be assessed against that dissenter. The court
may also assess the fees and expenses of counsel and experts for the respective
parties, in amounts the court finds equitable, as follows:
(1) Against the corporation and in favor of any or all dissenters
if the court finds that the corporation did not substantially comply with the
requirements of subsections (a), (b), (c), (d), or (f).
(2) Against either the corporation or a dissenter and in favor of
any other party if the court finds that the party against whom the fees and
expenses are assessed acted arbitrarily, vexatiously, or not in good faith with
respect to the rights provided by this Section.
If the court finds that the services of counsel for any dissenter were
of substantial benefit to other dissenters similarly situated and that the fees
for those services should not be assessed against the corporation, the court may
award to that counsel reasonable fees to be paid out of the amounts awarded to
the dissenters who are benefited. Except as otherwise provided in this Section,
the practice, procedure, judgment and costs shall be governed by the Code of
Civil Procedure.
(j) As used in this Section:
(1) "Fair value", with respect to a dissenters' shares, means the
value of the shares immediately before the consummation of the corporate action
to which the dissenter objects excluding any appreciation or depreciation in
anticipation of the corporate action, unless exclusion would be inequitable.
(2) "Interest" means interest from the effective date of the
corporate action until the date of payment, at the average rate currently paid
by the corporation on its principal bank loans or, if none, at a rate that is
fair and equitable under all the circumstances.
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Andrew is incorporated under the laws of the State of Delaware. Section
102(b)(7) of the General Corporation Law of the State of Delaware (the "DGCL")
provides that a corporation may limit or eliminate a director's personal
liability for monetary damages to the corporation or its stockholders for breach
of fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to such corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for paying a dividend or approving a stock
repurchase in violation of Section 174 of the DGCL, or (iv) for any transaction
from which the director derived an improper personal benefit. The Andrew
Certificate of Incorporation (the "Certificate") limits director liability to
such an extent.
Section 145 of the DGCL ("Section 145") provides that a Delaware
corporation may indemnify any persons who are, or are threatened to be made,
parties to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of such corporation), by reason of the fact that such person
was an officer, director, employee or agent of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee or
agent of another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his conduct was illegal. A Delaware corporation may indemnify
any persons who are, or are threatened to be made, a party to any threatened,
pending or completed action or suit by or in the right of the corporation by
reason of the fact that such person was a director, officer, employee or agent
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit, provided such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the corporation's best
interests, except that no indemnification is permitted without judicial approval
if the officer or director is adjudged to be liable to the corporation. Where an
officer or director is successful on the merits or otherwise in the defense of
any action referred to above, the corporation must indemnify him against the
expenses which such officer or director has actually and reasonably incurred.
Andrew's Certificate provides that each person who was or is made a
party to, or is involved in, any action, suit or proceeding by reason of the
fact that he is or was a director or officer of Andrew (or was serving at the
request of Andrew as a director, officer, employee or agent for another entity)
while serving in such capacity shall be indemnified and held harmless by Andrew,
to the full extent authorized by Section 145, as in effect (or, to the extent
indemnification is broadened, as it may be amended) against all expense,
liability and loss (including attorney's fees, judgments, fines, ERISA excise
taxes or penalties and amounts to be paid in settlement) reasonably incurred by
such person in connection therewith. The Certificate further provides that the
foregoing rights shall be contract rights and shall include the right to be paid
by Andrew the expenses incurred in defending the proceedings specified above in
advance of their final disposition, provided that if Delaware law so requires,
such payment shall only be made upon delivery to Andrew by the director or
officer of an undertaking to repay all amounts so advanced if it shall
ultimately be determined that the person receiving such payments is not entitled
to be indemnified under the Certificate or otherwise. Further, Andrew may, by
action of its Board of Directors, provide indemnification to its employees and
agents with the same scope and effect as the foregoing indemnification of
directors and officers.
Persons indemnified under Andrew's Certificate may also bring suit
against Andrew to recover unpaid amounts claimed thereunder, and if successful,
the expense of bringing such suit shall be reimbursed by Andrew. While it is a
defense to such a suit that the person claiming indemnification has not met the
applicable standards of conduct making indemnification permissible under
Delaware law, the burden of proving the defense shall be on Andrew and neither
the failure of Andrew's Board of Directors, stockholders or independent legal
counsel to have made a determination that indemnification is proper, nor an
actual determination that the claimant has not met the applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Andrew's Certificate provides that the right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition is not exclusive of any other right which any person may have or
acquire under any statute, provision of Andrew's Certificate or By-laws, or
otherwise. Finally, Andrew's Certificate provides that Andrew may maintain
insurance, at its expense, to protect itself and any of its directors, officers,
employees or agents against any expense, liability or loss, whether or not
Andrew would have the power to indemnify such person against such expense,
liability or loss under Delaware law.
<PAGE>
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information
The undersigned registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder through use of a
prospectus which is part of this registration statement, by any person or party
who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer
undertakes that such reoffering prospectus will contain the information called
for by the applicable registration form with respect to reofferings by persons
who may be deemed underwriters, in addition to the information called for by the
other Items of the applicable form.
The registrant undertakes that every prospectus (i) that is filed
pursuant to the paragraph immediately preceding, or (ii) that purports to meet
the requirements of section 10(a)(3) of the Act and is used in connection with
an offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in the documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Orland Park
and State of Illinois on the 7th day of February, 1996.
ANDREW CORPORATION
(Registrant)
/s/ F. L. English
Floyd L. English
Chairman, President and
Chief Executive Officer
Each person whose signature appears below appoints Floyd L. English,
Charles R. Nicholas and James F. Petelle and each of them severally, his true
and lawful attorneys-in-fact with full power of substitution and resubstitution,
to execute in the name of such person, in any and all capacities, all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting said
attorneys-in-fact full power and authority to take all actions necessary or
advisable to enable the Registration Statement to comply with the Securities Act
of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission in respect thereof, and ratifying all that
said attorneys-in-fact, or any substitute, may lawfully do or cause to be done
by virtue of this power.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on the 7th day of February, 1996.
Signature Title
/s/ F. L. English Chairman, President and Chief
Floyd L. English Executive Officer and a Director
/s/ C. R. Nicholas Executive Vice President and
Charles R. Nicholas Chief Financial Officer
/s/ G. F. Maruszak Vice President and Controller
Gregory F. Maruszak
/s/ John G. Bollinger Director
John G. Bollinger
/s/ Jon L. Boyes Director
Jon L. Boyes
/s/ George N. Butzow Director
George N. Butzow
/s/ Kenneth J. Douglas Director
Kenneth J. Douglas
/s/ J. D. Fluno Director
Jere D. Fluno
/s/ Carole M. Howard Director
Carole M. Howard
/s/ O. J. Wade Director
Ormand J. Wade
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT INDEX
2 Agreement and Plan of Merger between Included as Appendix A to the
the Registrant and The Antenna Proxy Statement/Prospectus.
Company dated January 25, 1996
4(a) Note Agreement dated Filed as Exhibit 4(a) to Form
September 1, 1990 10-K for fiscal year ended
September 30, 1995 and
incorporated herein by
reference.
4(a)a First Amendment to Note Agreement Filed as Exhibit 4(a)a to Form
dated September 1, 1990 10-K for fiscal year ended
September 30, 1992 and
incorporated herein by
reference.
4(b) Stockholder Rights Agreement Filed as Exhibit 4(b) to Form
dated September 22, 1988 10-K for fiscal year ended
September 30, 1993 and
incorporated herein by
reference.
5 Form of Opinion of Gardner,
Carton & Douglas
8 Form of Opinion of McDermott,
Will & Emery
11 Computation of Earnings per Share Filed as Exhibit 11 to Form
10-K for fiscal year ended
September 30, 1995 and
incorporated herein by
reference.
23(a) Consent of Ernst & Young LLP
23(b) Consent of William J. Barnes
& Co., Ltd.
23(c) Consent of Gardner, Carton & Douglas
(included in Exhibit 5)
23(d) Consent of McDermott, Will & Emery
(included in Exhibit 8)
24 Powers of Attorney (included in the
signature pages to this Registration
Statement)
EXHIBIT 5
_______________, 1996
Andrew Corporation
10500 West 153rd Street
Orland Park, Illinois 60462
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
As counsel to Andrew Corporation, a Delaware corporation (the
"Company"), we have participated in the legal proceedings and matters relating
to the Company's common stock, par value $0.01 per share (the "Shares"), being
registered pursuant to the Registration Statement on Form S-4 to which this
opinion is an Exhibit.
In our opinion, the Shares have been duly authorized and when issued
pursuant to the Agreement and Plan of Merger between the Company and The Antenna
Company, dated January 25, 1996, will be validly issued, fully paid and
nonassessable.
We consent to the use of our name and our opinion in the Registration
Statement.
Very truly yours,
EXHIBIT 8
____________________ ___, 1996
The Shareholders of
The Antenna Company
1100 Maplewood Drive
Itasca, Illinois 60143
Re: Merger of The Antenna Company
With and Into Andrew Corporation
Ladies and Gentlemen:
You have requested our opinion as to certain Federal income tax
consequences of the merger (the "Merger") of The Antenna Company ("Antenna")
with and into Andrew Corporation ("Andrew") pursuant to an Agreement and Plan
of Merger dated January 25, 1996 (the "Agreement"). Capitalized terms not
otherwise defined herein shall have the meaning set forth in the Agreement.
Based upon our examination of the Agreement and other documents we
deemed pertinent, upon representations made to us by Andrew and Antenna in
connection with the Merger (in the form of officers' certificates dated
__________ ___, 1996), representations made by the shareholders of Antenna in
connection with the Merger, and our review of applicable provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), and the regulations and
rulings thereunder, it is our opinion for Federal income tax purposes that:
(i) The Merger will constitute a tax-free reorganization within
the meaning of Section 368(a)(1)(A) of the Code and Antenna and Andrew will each
be a party to the reorganization;
(ii) No gain or loss will be recognized by the shareholders of
Antenna who exchange their Antenna Common Stock for Andrew Common Stock pursuant
to the Merger (except with respect to cash received in lieu of a fractional
share interest in Andrew Common Stock);
(iii) The tax basis of the Andrew Common Stock received by
shareholders who exchange all of their Antenna Common Stock for Andrew Common
Stock in the Merger will be the same as the tax basis of the Antenna Common
Stock surrendered in exchange therefor (reduced by any amount allocable to a
fractional share interest for which cash is received); and
(iv) The holding period of Andrew Common Stock received by
shareholders of Antenna in the Merger will include the period during which the
shares of Antenna Common Stock surrendered in exchange therefor were held;
provided, such Antenna Common Stock was held as a capital asset by the holder
of such Antenna Common Stock at the Effective Time.
We hereby consent to all references to McDermott, Will & Emery in the
Proxy Statement/Prospectus comprising a part of the Registration Statement on
Form S-4 filed by Andrew under the Securities Act of 1933, as amended, and to
the filing of this opinion by Antenna as Exhibit 8 to such Registration
Statement.
Very truly yours,
EXHIBIT 23(A)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-4 No.33-xxxxx) and related Prospectus of
Andrew Corporation for the registration of 1,250,000 shares of its common
stock and to the incorporation by reference therein of our reports dated
November 3, 1995, with respect to the consolidated financial statements of
Andrew Corporation incorporated by reference in its Annual Report (Form 10-K)
for the year ended September 30, 1995 and the related financial statement
schedule included therein, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
February 12, 1996
EXHIBIT 23(B)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the use of our reports included in this Registration
Statement on Form S-4 and to the reference to our firm under the heading
"Experts -- Antenna" in the Proxy Statement/Prospectus contained in such
Registratiaon Statement.
/s/ William J. Barnes & Co. Ltd.
WILLIAM J. BARNES & CO., LTD.
Arlington Heights, Illinois
February 12, 1996
