SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED DECEMBER 31, 1995.
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 0-9514
ANDREW CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 36-2092797
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
10500 W. 153RD STREET, ORLAND PARK, ILLINOIS 60462
(Address of principal executive offices and zip code)
(708) 349-3300
(Registrant's telephone number, including area code)
No Change
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period as the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practical date.
Common Stock, $.01 Par Value--39,041,799 shares as of February 7, 1996
<PAGE>
INDEX
ANDREW CORPORATION
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited)
Consolidated balance sheets--December 31, 1995 and September 30, 1995.
Consolidated statements of income--Three months ended December 31,
1995 and 1994.
Consolidated statements of cash flows--Three months ended December 31,
1995 and 1994.
Notes to consolidated financial statements--December 31, 1995.
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
PART II OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
Exhibit 2 - Agreement and Plan of Merger between Andrew Corporation and
The Antenna Company dated January 25, 1996.
Exhibit 11 - Computation of Earnings per Share.
SIGNATURES
<PAGE>
<TABLE>
ANDREW CORPORATION
CONSOLIDATED BALANCE SHEET
(In thousands)
<CAPTION>
December 31 September 30
1995 1995
--------- ---------
(Unaudited)
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 22,291 $ 45,085
Accounts receivable, less allowances
(Dec. $3,466; Sep. $3,066) 150,228 141,732
Inventories
Finished products 48,058 43,646
Materials and work in process 83,679 75,788
--------- ---------
131,737 119,434
Miscellaneous current assets 4,831 4,430
--------- ---------
TOTAL CURRENT ASSETS 309,087 310,681
OTHER ASSETS
Costs in excess of net assets of businesses
acquired, less accumulated amortization
(Dec. $17,186; Sep. $16,524) 42,198 35,667
Investments in and advances to affiliates 38,470 33,480
Investments and other assets 12,136 10,661
PROPERTY, PLANT, AND EQUIPMENT
Land and land improvements 9,907 9,402
Building 63,612 55,069
Equipment 221,169 209,039
Allowances for depreciation and amortization (177,965) (172,970)
--------- ---------
116,723 100,540
--------- ---------
TOTAL ASSETS $ 518,614 $ 491,029
========= =========
<FN>
The balance sheet at September 30, 1995 has been derived from the audited
financial statements at that date.
See notes to consolidated financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
ANDREW CORPORATION
CONSOLIDATED BALANCE SHEET
(In thousands, except share amounts)
(continued)
<CAPTION>
December 31 September 30
1995 1995
--------- ---------
(Unaudited)
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 29,011 $ 26,726
Accrued expenses and other liabilities 27,076 17,607
Compensation and related expenses 19,203 25,310
Income taxes 14,476 13,666
Current portion of long-term debt 4,545 4,545
--------- ---------
TOTAL CURRENT LIABILITIES 94,311 87,854
DEFERRED LIABILITIES 5,654 7,087
LONG-TERM DEBT, LESS CURRENT PORTION 45,240 44,710
MINORITY INTEREST 6,782
STOCKHOLDERS' EQUITY
Common Stock (par value, $.01 a share:
100,000,000 shares authorized;
45,653,823 shares issued, including treasury) 457 457
Additional paid-in capital 44,577 44,437
Foreign currency translation 354 1,076
Retained earnings 378,465 362,738
Treasury stock, at cost
(6,619,787 shares Dec.; 6,648,675 shares Sep.) (57,226) (57,330)
--------- ---------
366,627 351,378
--------- ---------
TOTAL LIABILITIES AND EQUITY $ 518,614 $ 491,029
========= =========
<FN>
The balance sheet at September 30, 1995 has been derived from the audited
financial statements at that date.
See notes to consolidated financial statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
ANDREW CORPORATION
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
(In thousands, except per share amounts)
<CAPTION>
Three Months Ended
December 31
1995 1994
--------- ---------
<S> <C> <C>
SALES $ 164,031 $ 142,605
Cost of products sold 96,784 83,847
--------- ---------
GROSS PROFIT 67,247 58,758
OPERATING EXPENSES
Sales and administrative 34,555 34,115
Research and development 7,098 5,640
--------- ---------
41,653 39,755
OPERATING INCOME 25,594 19,003
OTHER
Interest expense 1,208 1,383
Interest income (643) (636)
Other expense 455 703
--------- ---------
1,020 1,450
INCOME BEFORE INCOME TAXES 24,574 17,553
Income taxes 8,847 6,319
--------- ---------
NET INCOME $ 15,727 $ 11,234
========= =========
NET INCOME PER AVERAGE SHARE OF
COMMON STOCK OUTSTANDING $ 0.40 $ 0.28
========= =========
AVERAGE SHARES OUTSTANDING 39,616 39,435
========= =========
<FN>
See Notes to Consolidated Financial Statements
</FN>
</TABLE>
<PAGE>
<TABLE>
ANDREW CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(In thousands)
<CAPTION>
Three Months Ended
December 31
-------------------------
1995 1994
-------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATIONS
Net Income $ 15,727 $ 11,234
ADJUSTMENTS TO NET INCOME
Depreciation and amortization 6,812 5,280
(Increase) decrease in accounts receivable (5,171) 2,063
Increase in inventories (5,831) (10,461)
Decrease (increase) in miscellaneous
current and other assetS 155 (770)
Increase in receivables from affiliates (532) (885)
Decrease in accounts payable and other liabilities (750) (6,802)
Other (72) (73)
-------- --------
NET CASH FROM (USED IN) OPERATIONS 10,338 (414)
INVESTING ACTIVITIES
Capital expenditures (13,867) (8,234)
Acquisition of business, net of cash acquired (14,453) --
Investments in and advances to affiliates (4,990) (2,237)
Proceeds from sale of property, plant, and equipment 120 91
-------- --------
NET CASH USED IN INVESTING (33,190) (10,380)
FINANCING ACTIVITIES
Proceeds from long-term borrowings -- 3,800
Stock option plans 356 600
-------- --------
NET CASH FROM FINANCING ACTIVITIES 356 4,400
Foreign currency translation adjustments (298) (107)
-------- --------
Decrease for the period (22,794) (6,501)
Cash and equivalents at beginning of period 45,085 40,267
-------- --------
CASH AND EQUIVALENTS AT END OF PERIOD $ 22,291 $ 33,766
======== ========
<FN>
See Notes to Consolidated Financial Statements
</FN>
</TABLE>
<PAGE>
ANDREW CORPORATION
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 and with the instructions to Form 10-Q and Rule 10-01 of
Regulation S-X. 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 month period ended December 31,
1995 are not necessarily indicative of the results that may be expected for the
year ending September 30, 1996. For further information, refer to the
consolidated financial statements and footnotes thereto included in the
company's annual report on Form 10-K for the year ended September 30, 1995.
NOTE B--ACCOUNTING FOR THE IMPAIRMENT OF LONG-LIVED ASSETS AND FOR LONG-LIVED
ASSETS TO BE DISPOSED OF
In March 1995, the Financial Accounting Standards Board (FASB) issued Statement
of Financial Accounting Standard (SFAS) No. 121, "Accounting for the Impairment
of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of", which
requires long-lived assets to be reviewed for impairment when events or
circumstances indicate that an impairment exists. The company is required to
adopt SFAS No. 121 during the first quarter of fiscal 1997. Adoption of this
Statement will not have a material effect on the company's financial statements.
NOTE C--ACQUISITION
In December 1995 the company purchased a 51% interest in GAM Participacoes Ltda.
("GAM") for approximately $15.5 million in cash. The acquisition was accounted
for as a purchase and, accordingly, the operating results of GAM have been
included in the consolidated operating results since the date of acquisition.
The company manufactures, distributes and sells antennas, waveguide, and towers
and provides installation services. GAM is located in Brazil.
Had GAM been acquired at the beginning of fiscal 1994, the pro-forma inclusion
of its operating results would not have had a material effect on the company's
reported consolidated net earnings for the quarters ended December 31, 1995 and
1994.
NOTE D--SUBSEQUENT EVENT
On January 25, 1996 the company signed a definitive agreement to acquire The
Antenna Company, a manufacturer and distributor of wireless telephone antennas
and accessories for mobile applications. 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 privately held The Antenna Company.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Net sales for the quarter ended December 31, 1995 totaled $164.0 million, a 15%
increase over the prior year quarter. The increase was primarily attributable to
increased demand for the company's wireless communications products and services
in Europe, Canada and the Pacific Rim. The commercial segment was the principal
contributor to sales growth as weaker performances in the network products and
government electronics businesses partially offset the strength in the
commercial segment.
As a percentage of sales, cost of products sold was 59% in the first quarter of
both fiscal 1996 and 1995.
Sales and administrative expense for the quarter increased marginally to $34.6
million, a $0.5 million increase over the prior year first quarter. As a percent
of sales, sales and administrative expenses were 21%, down from 24% in the same
period last year. The decrease was due to the higher rate of growth in sales as
compared to the growth in expenses.
Research and development expenditures for the first quarter increased $1.5
million, or 26% over the same period last year. The increase is primarily
related to new technology development efforts within the commercial segment.
LIQUIDITY AND CAPITAL RESOURCES
Net cash from operations improved compared to the same period last year by $10.8
million. Earnings in the first quarter of fiscal 1996 combined with a reduced
rate of increase in inventory provided increased cash flows. The improvements
were partially offset by an increase in accounts receivable, primarily the
result of the sales increases.
In the first quarter of fiscal 1996 the company purchased a 51% interest in a
manufacturing company in Brazil for $15.5 million in cash.
<PAGE>
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
Exhibit 2 - Agreement and Plan of Merger between Andrew
Corporation and The Antenna Company dated
January 25, 1996.
Exhibit 11 - Computation of earnings per share.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the quarter ended
December 31, 1995.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ANDREW CORPORATION
Date February 12, 1996 /s/F. L. English
--------------------- ---------------
F. L. English
Chairman, President and
Chief Executive Officer
Date February 12, 1996 /s/C. R. Nicholas
--------------------- --------------
C. R. Nicholas
Executive Vice President and
Chief Financial Officer
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.
EXHIBIT 11
<TABLE>
ANDREW CORPORATION
COMPUTATION OF EARNINGS PER SHARE
(In thousands, except per share amounts)
<CAPTION>
Three Months Ended
December 31
----------------------
1995 1994
--------- --------
<S> <C> <C>
PRIMARY EARNINGS PER SHARE
Average shares outstanding 39,019 38,348
Net effect of dilutive stock options--
based on the treasury stock method
using average market price 597 1,071
-------- --------
TOTAL 39,616 39,419
======== ========
Net income $ 15,727 $ 11,234
======== ========
Per share amount $ .40 $ .28
======== ========
FULLY DILUTED EARNINGS PER SHARE (NOTE)
Average shares outstanding 39,019 38,348
Net effect of dilutive stock options--
based on the treasury method
using average market price 597 1,087
-------- --------
TOTAL 39,616 39,435
======== ========
Net income $ 15,727 $ 11,234
======== ========
Per share amount $ .40 $ .28
======== ========
<FN>
NOTE: This calculation is submitted in accordance with the Securities Exchange
Act of 1934 Release No. 9038 although not required by footnote 2 to
paragraph 14 of APB Opinion No. 15 because it results in dilution of
less than 3%.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<CASH> 22,291
<SECURITIES> 0
<RECEIVABLES> 153,694
<ALLOWANCES> 3,466
<INVENTORY> 131,737
<CURRENT-ASSETS> 309,087
<PP&E> 294,688
<DEPRECIATION> 177,965
<TOTAL-ASSETS> 518,614
<CURRENT-LIABILITIES> 94,311
<BONDS> 45,240
0
0
<COMMON> 457
<OTHER-SE> 366,170
<TOTAL-LIABILITY-AND-EQUITY> 518,614
<SALES> 164,031
<TOTAL-REVENUES> 164,031
<CGS> 96,784
<TOTAL-COSTS> 96,784
<OTHER-EXPENSES> 41,653
<LOSS-PROVISION> 266
<INTEREST-EXPENSE> 1,208
<INCOME-PRETAX> 24,574
<INCOME-TAX> 8,847
<INCOME-CONTINUING> 15,727
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 15,727
<EPS-PRIMARY> 0.40
<EPS-DILUTED> 0.40
</TABLE>
