Exhibit 2 - ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is entered into as of October 30, 1997 (the
"Agreement") between KVH Industries, Inc., a Delaware corporation ("Buyer"), and
Andrew Corporation, a Delaware corporation ("Seller").
RECITALS:
A. Seller is engaged in, among other things, the design, manufacture and
sale of optical fiber, fiber optic gyroscopes and other fiber optic products and
services using proprietary designs and equipment and proprietary optical fiber
(the "Sensor Products Business").
B. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, certain of the assets and properties of the Sensor Products Business on
the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, Buyer and Seller agree as follows:
I. SALE AND PURCHASE OF SENSOR PRODUCTS BUSINESS.
1. 1. Purchased Assets. On the terms and subject to the conditions of this
Agreement, Seller shall sell to Buyer and Buyer shall purchase from Seller the
following assets and properties owned by Seller and used in connection with the
Sensor Products Business, as such assets and properties exist on the Closing
Date (collectively, the "Purchased Assets"):
(a) Tangible Assets. All machinery, equipment (including spare parts), data
processing hardware, furniture, fixtures, capital expenditures in process,
models, prototypes and similar tangible personal properties used in the conduct
of the Sensor Products Business and located in Seller's Orland Park, Illinois
and St. Petersburg, Florida facilities, including the assets identified on the
attached Schedule II(a) (the "Tangible Assets");
(b) Inventory. All inventories consisting of raw materials, work in
process, finished goods, service parts and supplies owned, produced or otherwise
acquired by Seller that are used or intended to be used in the conduct of the
Sensor Products Business, including the inventory identified on the attached
Schedule 1. 1 (b) (the "Inventory");
(c) Receivables. All trade accounts and notes receivable generated by the
conduct of the Sensor Products Business owed to Seller by third parties (but not
by Affiliates of Seller, as hereinafter defined) including the trade accounts
and notes receivable identified on the attached Schedule 1. I (c) (collectively,
the "Receivables");
(d) Proprietary Rights. The Patents and Relevant Technology described in
the Technology Rights Agreement referred to in Section 2.2(c)(i) and the
trademarks, service marks, logos and trade names listed on the attached Schedule
I. I (d) (collectively, the "Proprietary Rights"), together with all goodwill
associated therewith, and all copyrights, software (and related licenses),
technology, trade secrets, know-how, customer lists, formulas, processes,
designs, developments and confidential Sensor Products Business information,
whether or not patented or patentable, developed, acquired, used or possessed by
or for Seller in connection with the Products Business;
(e) Executoury and Other Agreements. The rights of Seller under the
agreements, contracts, leases, commitments or obligations described in the
attached Schedule 1.1(e) and the rights of Seller pursuant to any license to or
from Seller of any Proprietary Rights and all agreements under which any current
or former employee of the Sensor Products Business or any entity is obligated
not to disclose or use other than for Seller's benefit confidential information
of Seller relating to the Sensor Products Business and to disclose and transfer
to Seller inventions made by such person or entity relating to the Sensor
Products Business; and
(f) Other Assets. All other assets specifically related to the Sensor
Products Business.
1.2. Excluded Assets. Anything in Section 1. I to the contrary
notwithstanding, the Purchased Assets shall not include the following
(collectively, the "Excluded Assets"):
(a) Cash. All cash, cash equivalents, negotiable instruments, bank
accounts, certificates of deposit, investment securities, commercial paper and
any other marketable securities or similar investments of Seller;
(b) Leased Equipment. The vehicles, office equipment and other leased
equipment, the leases of which Buyer has advised Seller in writing that it does
not intend to assume;
(c) Fixtures, etc. Fixtures and general purpose business and office
equipment not specifically related to the Sensor Products Business;
(d) Corporate Records. All corporate minute books, stock transfer books,
corporate seals and other corporate rights and franchises of Seller;
(e) Prepaids. All rights in connection with any deposits and prepaid
expenses made by Seller; and
(f) Insurance Rights. All claims, rights or causes of action whatsoever
under any insurance policies maintained by or for the benefit of Seller or with
respect to the Sensor Products Business.
II. PURCHASE PRICE AND CLOSING.
2.1. Purchase Price. The purchase price ("Purchase Price") of the Purchased
Assets shall consist of:
(a) Cash. An amount in cash equal to $1,850,000, less
(i) the liability for accrued vacation benefits assumed by Buyer pursuant
to Section 3.2(b);
(ii) the amount, if any, by which salable Inventory is less than
$1,220,000;
(iii) the amount, if any, by which Receivables are less than $196,000;
(iv) the amount, if any, by which the net book value of the Tangible Assets
is less than $365,000 (the amount so determined being hereinafter referred to as
the "Cash Purchase Price"); and
(b) Warrant. A warrant in substantially the form of the attached Exhibit A
(the "Warrant") for the purchase of 50,000 shares of Buyer's common stock at an
initial exercise price of $8.00 per share.
2.2. Closing. The consummation of the transactions contemplated herein (the
"Closing") shall take place at 10:00 A.M., local time, on the date of this
Agreement at the offices of Gardner, Carton & Douglas, 321 North Clark Street,
Chicago, Illinois, or at such other time or place as shall be agreed upon by
Buyer and Seller. The time and date on which the Closing is actually held is
referred to herein as the "Closing Date." The Closing shall be effective on and
after the opening of business on the Closing Date and risk of any loss with
respect to the Purchased Assets shall pass to Buyer at such effective time. At
the Closing:
(a) Seller's Deliveries. Seller shall deliver to Buyer:
(i) Such documents as Buyer deems reasonably necessary to effectuate the
transfer of the Proprietary Rights from Seller to Buyer; and
(ii) Such other bills of sale, assignments and other instruments of
transfer or conveyance as may be necessary or as Buyer may reasonably request to
evidence and effect the sale, assignment, transfer, conveyance and delivery of
the Purchased Assets to Buyer.
(b) Buyer's Deliveries. Buyer shall deliver to Seller:
(i) Payment of the Cash Purchase Price by wire transfer of immediately
available funds to a U.S. Bank account designated by Seller;
(ii) The Warrant registered in Seller's name; and
(iii) Such documents and instruments of assumption as may be necessary or
as Seller may reasonably request to evidence and effect Buyer's performance of
its obligations hereunder.
(c) Joint Deliveries. Buyer and Seller shall enter into the following
agreements:
(i) A Technology Transfer Agreement, in substantially the form of the
attached Exhibit B, relating to the use and ownership of any intellectual
property used in the Sensor Products Business;
(ii) An occupancy agreement pursuant to which Buyer may occupy without
charge for not more than three months following the Closing ($1.25 per square
foot per month or portion of a month thereafter) the space (other than the space
described in clause (iii) below) currently occupied by the Sensor Products
Business in Andrew's facility in Orland Park, Illinois;
(iii) An occupancy agreement pursuant to which Buyer may occupy without
charge for not more than six months following the Closing ($1.25 per square foot
per month or portion of a month thereafter) the basement space in Andrew's
Orland Park, Illinois facility that is currently being used for fiber production
and testing;
(iv) An assignment or sublease of the space currently occupied by the
Sensor Products Business in Andrew's leased facility in St. Petersburg, Florida;
and
(v) A registration rights agreement (the "Registration Rights Agreement")
in substantially the form of the attached Exhibit C.
(d) Other. Seller shall receive from each of Sid Bennett and Jeffrey
Brunner a certificate substantially in the form of the attached Exhibit D.
III. ASSUMPTION OF LIABILITIES.
3.1. Excluded Liabilities. Buyer shall not assume or be obligated to pay,
perform or otherwise discharge any liability, obligation or commitment of Seller
(whether direct or indirect, matured or umnatured, known or unknown, absolute,
accrued, contingent or otherwise) not expressly assumed by Buyer pursuant to the
transactions contemplated by this Agreement (all such liabilities, obligations
or commitments not being assumed are collectively referred to herein as the
"Excluded Liabilities") and, notwithstanding anything in Section 3.2 to the
contrary, none of the following shall be "Assumed Liabilities" for purposes of
this Agreement:
(a) Taxes. Liabilities in respect of any Taxes imposed on the Seller for
all periods prior to the Closing Date;
(b) Intercompany Liabilities. Any trade or other accounts payable by Seller
to its Affiliates;
(c) Trade Payables. Any trade accounts payable by Seller to third parties;
and
(d) Personnel Liabilities. Seller's liabilities for (i) severance
compensation to employees who do not become employees of Buyer, (ii) retiree
medical or life insurance benefits, (iii) pension benefits for active or retired
employees of Seller or (iv) any compensation or benefit, other than credit for
accrued vacation, accrued or earned prior to the Closing by any employee of
Seller who becomes an employee of Buyer as of Closing.
(e) Product Liabilities. Any liability arising out of or in connection with
the sale of any product by Seller prior to the Closing Date.
(f) Environmental Liabilities. Any liability arising out of or in
connection with the use, storage, manufacture or disposal of material used in
the manufacture of the products, or the products, of the Sensor Products
Business.
(g) Other Liabilities. Any other liability, other than any Assumed
Liability, arising from the operation of the Sensor Products Business prior to
the Closing.
3.2. Assumed Liabilities. Subject to Section 3.1, at the Closing, Buyer
shall assume and agree to discharge or perform the following liabilities,
obligations and commitments of Seller, as they may exist on the Closing Date:
(a) Executory and Other Contracts. All liabilities, obligations and
commitments of Seller to be paid or performed after the Closing Date pursuant to
the contracts, agreements, leases or commitments, sales and purchase orders
listed on Schedule 1.1(e);
(b) Accrued Vacation Benefits. Seller's liability for accrued vacation
benefits for each employee of Seller listed on the attached Schedule 3.2(b).
All of the foregoing liabilities, obligations and commitments to be assumed
by Buyer are referred to herein as the "Assumed Liabilities." In no event shall
Buyer assume or otherwise become responsible for any liabilities of Seller, or
any Persons that directly or indirectly control, are controlled by, or are under
common control with, Seller (collectively, "Affiliates"), other than the Assumed
Liabilities.
IV. REPRESENTATIONS AND WARRANTIES OF SELLER.
As an inducement to Buyer to enter into this Agreement and to consummate
the transactions contemplated hereby, Seller represents and warrants to Buyer as
follows:
4.1. Origin Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. Seller is duly qualified
to transact business as a foreign corporation and is in good standing in each of
the jurisdictions in which its operations relating to the Sensor Products
Business require it to qualify to transact business as a foreign corporation,
except for those jurisdictions where the failure to so qualify would not
reasonably be expected to have a material adverse effect on the Seller and its
operations taken as a whole (a "Material Adverse Effect") or the ability of
Seller to consummate the transactions contemplated by this Agreement.
4.2. Corporate Authority. Seller has the corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder and,
to the extent required, each Subsidiary has the corporate power and authority to
perform the obligations required of it hereunder. The execution, delivery and
performance of this Agreement by Seller have been duly authorized by their its
board of directors and the performance by each Subsidiary, if required, will be
duly authorized by its board of directors and by Seller as its sole stockholder.
This Agreement has been duly executed and delivered by Seller and is the legal,
valid and binding obligation of Seller, enforceable against it in accordance
with its terms, except as such enforceability may be limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (b) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4.3. No Conflict. The execution and delivery of this Agreement by Seller
and the consummation by Seller of the transactions contemplated herein will not:
(a) Conflicts. Conflict with, result in a breach of the terms, conditions
or provisions of, or constitute a default, an event of default or an event
creating rights of acceleration, termination or cancellation, or result in the
creation or imposition of any lien on any of the Purchased Assets, under (i) the
charter or By-Laws of Seller, (ii) any agreement listed in Schedule 1.1(e),
(iii) any other note, instrument, agreement, mortgage, lease, license,
franchise, permit or other authorization, right, restriction or obligation to
which Seller is a party or any of the Purchased Assets is subject, (iv) any
judgment, order, award or decree of any federal, state or local court or
tribunal or any award in any arbitration proceeding (a "Court Order") to which
Seller is a party or pursuant to which the Purchased Assets are bound, or (v)
any federal, state or local laws, statutes, regulations, rules, codes or
ordinances (collectively, "Requirements of Law") enacted, adopted, issued or
promulgated by any federal, state or local governmental authority, body or
instrumentality ("Governmental Body"), the effect of which in any such case
would adversely affect the Purchased Assets, the Sensor Products Business or
Seller's ability to consummate the transactions contemplated hereby; or
(b) Approvals. Require the approval, consent, authorization or act of, or
the making by Seller of any declaration, notification, filing or registration
with, any individual, corporation, partnership, joint venture, association,
trust, unincorporated organization or Governmental Body (each, a "Person"),
except for the consent of the landlord to the assignment or sublease by Buyer of
Seller's St. Petersburg, Florida facility.
4.4. Title to and Condition of Purchased Assets. Seller has good and
marketable title to (or valid and enforceable leasehold, license or similar
interests in) all of the Purchased Assets, free and clear of all liens, claims,
charges, security interests, mortgages, pledges, easements, conditional sales or
other title retention agreements, defects in title, covenants or other
restrictions (collectively, the "Encumbrances"), other than Encumbrances that
would not reasonably be expected to impair materially the utility, value or
marketability of the Purchased
CONDITION OF ANY OF THE PURCHASED ASSETS, SUCH PURCHASED ASSETS BEING SOLD
AS IS AND WHERE IS, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, AND SELLER
EXPRESSLY EXCLUDES ALL LIABILITY FOR THE CONDITION OF ANY OF THE PURCHASED
ASSETS TO THE FULLEST EXTENT PERMITTED BY LAW.
4.5. Proprietary Rights.
(a) Notice of Claim. Seller has not received written notice of any claim
contesting the ownership, validity, license or use of the Proprietary Rights by
Seller or the sale of products and services included in the Sensor Products
Business and, to Seller's knowledge, there is no basis for any such claim;
(b) Rights. Seller owns or possesses valid and enforceable rights to use
the Proprietary Rights and has the right to manufacture and sell the products
and services currently manufactured and sold as part of the Sensor Products
Business.
(c) Licenses. Set forth on the attached Schedule 4.5(c) is a list of all
licenses (other than licenses of off-the-shelf software) to and from Seller of
any Proprietary Right;
(d) No Royalties Payable. Seller has no obligation to pay any royalties or
other fees to third parties for the use of any Proprietary Rights.
(e) No Infringement. Seller is not aware of any infringement by others of
the rights in the Proprietary Rights being transferred by Seller to Buyer.
(f) No Unauthorized Possession. To the knowledge of Seller, no person other
than Seller and its licensors has possession of any products embodying Relevant
Technology, except to the extent the same have been made available to customers
and prospective customers of Seller in the ordinary course of business.
4.6. Status of Contracts. Except as previously disclosed to Buyer in
writing:
(a) Each of the contracts, agreements and other commitments of Seller
listed in Schedule 1. I (e) (collectively, the "Seller Agreements") constitutes
a valid obligation of Seller and, to Seller's knowledge, the other parties
thereto, and is in full force and effect; Assets. SELLER'S NO REPRESENTATION OR
WARRANTY-AS TO THE:
(b) Seller has not been declared to be in material breach or material
default under any of the Seller Agreements and, to Seller's knowledge, no other
party to any of the Seller Agreements is in material breach or material default
thereunder; and
(c) to Seller's knowledge, copies of all Seller Agreements, including any
amendments thereto, have been made available to Buyer.
4.7. Purchase for Own Account. The Warrant is being acquired by Seller for
its own account for investment and Seller has no present intention of reselling
or otherwise distributing the Warrant or shares issuable upon exercise thereof
or any part thereof; provided that the disposition of Seller's property shall at
all times be and remain within its control. Seller understands that the Warrant
and shares issuable upon exercise thereof have not been registered under the
Securities Act of 1933, as amended, and may not be sold or disposed of by Seller
except pursuant to an effective registration statement or an exemption
therefrom.
4.8. No Liability to Finder. Neither Seller nor any Person acting on its
behalf has retained any broker, finder, investment banker or financial advisor
in connection with this Agreement or any transaction contemplated hereby for
which the Buyer may be directly or indirectly liable.
V. BUYER'S REPRESENTATIONS AND WARRANTIES.
As an inducement to Seller to enter into this Agreement and to consummate
the transactions contemplated hereby, Buyer represents and warrants to Seller as
follows:
5.1. Organization . Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Buyer has the
corporate power and authority to consummate the transaction contemplated by this
Agreement and to conduct the Sensors Products Business thereafter. Promptly
following the Closing, Buyer will be duly qualified to transact business as a
foreign corporation in the States of Illinois and Florida.
5.2. Corporate Authority. Buyer has the corporate power and authority to
execute and deliver this Agreement and the Warrant and to perform its
obligations hereunder and thereunder. The execution, delivery and performance of
this Agreement and the Warrant by Buyer have been duly authorized its board of
directors. This Agreement and the Warrant have been duly executed and delivered
by Buyer and are the legal, valid and binding obligations of Buyer, enforceable
against it in accordance with their terms, except as such enforceability may be
limited by (a)applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
5.3. Issuance of Shares. The shares of Buyer's common stock issuable upon
exercise of the Warrant have been duly and validly authorized and reserved for
issuance and, when issued, sold and delivered in accordance with the terms of
the Warrant, will be duly and validly issued, fully paid and nonassessable.
5.4. No Conflict. The execution and delivery of this Agreement and the
Warrant and the consummation by Buyer of the transactions contemplated herein
will not:
(a) Conflicts. Conflict with, result in a breach of the terms, conditions
or provisions of, or constitute a default, an event of default or an event
creating rights of acceleration, termination or cancellation, or result in the
creation or imposition of any lien on any of Buyer's assets, under (i) the
charter or By-Laws of Buyer, (ii) any material note, instrument, agreement,
mortgage, lease, license, franchise, permit or other authorization, right,
restriction or obligation to which Buyer is a party or any of its properties is
subject, (iii) any Court Order to which Buyer is a party or by which it is
bound, or (iv) any Requirements of Law affecting Buyer; or
(b) Approvals. Require the approval, consent, authorization or act of, or
the making by Buyer of any declaration, filing, notification or registration
with, any Person; except in each case, for any of the foregoing that would not
be reasonably expected to have a material adverse effect on Buyer's ability to
consummate the transactions contemplated herein.
5.5. Buyer's Investigation. Buyer and its representatives have been
provided by Seller with reasonable access during normal business hours to the
offices, properties, employees and business and financial records of Seller
relating to the Sensor Products Business, and Seller has furnished to Buyer or
its representatives such additional information concerning the Purchased Assets
and the Sensor Products Business as Buyer has requested. Buyer understands and
acknowledges that Seller is selling the Purchased Assets and the Sensor Products
Business as is and where is and that SELLER MAKES NO EXPRESS OR IMPLIED
REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OF THE PURCHASED ASSETS OR THE SENSOR PRODUCTS BUSINESS, NOR DOES IT
MAKE ANY REPRESENTATION AS TO THE COLLECTABILITY OF ANY RECEIVABLES.
5.6. No Liability to Finder. Neither Buyer nor any Person acting on its
behalf has retained any broker, finder, investment banker or financial advisor
in connection with this Agreement or any transaction contemplated hereby for
which Seller or Seller may be directly or indirectly liable.
VI. MUTUAL AGREEMENTS.
6.1. Taxes. Buyer shall pay all Taxes, recording fees, personal property,
title application fees, patent and trademark assignment registration -fees, and
any other transfer taxes and fees arising by virtue of the transfer of the
Purchased Assets from Seller to Buyer.
6.2. Access to Records After Closing. Seller and Buyer agree that after the
Closing Date they will give, or cause to be given, to the other party, their
successors and their representatives, during normal business hours and at the
requesting party's expense, such reasonable access to the properties, titles,
contracts, books, records, files and documents applicable to, and the affairs
of, the Sensor Products Business or the Purchased Assets as is reasonably
necessary to allow the requesting party to obtain information in the other
party's possession with respect to the Sensor Products Business or the Purchased
Assets.
6.3. Reasonable Efforts; Further Assurances. Each of Seller and Buyer
agrees to use its reasonable efforts to take, or cause to be taken, all action,
and to do, or cause to be done, all things reasonably necessary, proper or
advisable to consummate and make effective the transactions contemplated by this
Agreement. In case at any time after the Closing Date any further action is
necessary to carry out the purposes of this Agreement, the proper officers
and/or directors of Seller or Buyer, as the case may be, shall take such action
without any further consideration therefor.
6.4. Vacation of Seller's Facilities. Buyer will make every reasonable
effort to vacate Seller's facilities in advance of the expiration of the
occupancy rights under the agreements referred to in Section 2.2(c), consistent
with maintaining an orderly business transition. Seller will cooperate with and
support Buyer in Buyer's efforts to move efficiently the Tangible Assets and
personnel acquired by Buyer from Seller's facilities.
6.5. Seller's Noncompete Agreement. Seller agrees that, for a period of
five years from the Closing Date, Seller will not, directly or indirectly,
engage or participate in, or permit its name to be used by, or render services
for, any person or entity that is engaged in the business currently being
conducted by the Sensor Products Business; provided, however, that nothing in
this Agreement shall prevent Seller from acquiring or owning, as a passive
investment, not more than 5% of the outstanding publicly traded voting
securities of an entity engaged in such business. During the one year period
following the Closing Date, Seller shall not encourage, solicit, induce or seek
to induce any employee of the Buyer who was formerly an employee of Seller to
leave such employment for any reason.
6.6. Seller's Indemnification. Seller agrees to indemnify and hold Buyer
harmless from and against any damage, liability, loss or cost, including
reasonable attorney's fees (any such damage, liability, loss or cost being
hereinafter referred to as an "Indemnified Loss"), arising out of or resulting
from, and will pay Buyer on demand the full amount Buyer may pay or become
obligated to pay in respect of any claim, suit or proceeding based upon or
arising out of.
(a) any Excluded Liability; and
(b) any material inaccuracy in any representation or any material breach by
Seller of any warranty made by Seller in this Agreement.
Buyer shall give prompt written notice to Seller of any claim that might
give rise to an Indemnified Loss, stating the nature, basis and amount thereof,
if known, or a reasonable estimate of such amount. In case of any suit, claim,
action or proceeding to which this Section 6.6 may apply, Seller may participate
therein, and, to the extent that Seller may wish, to assume the defense thereof,
and after notice from Seller to Buyer of its election so to assume the defense,
Seller shall not be liable to Buyer for additional legal or other costs
subsequently incurred by Buyer in connection with the defense. Buyer agrees to
make available to Seller and its counsel, at all reasonable times during normal
business hours, all books and records of Buyer (including to the extent required
Proprietary Rights) relating to such suit or proceeding and to provide Seller
with such assistance (including making available former Seller employees to
testify) as Seller may reasonably require to insure a proper and adequate
defense.
6.7. Buyer's Indemnification. Buyer agrees to indemnify and hold Seller
harmless from and against any damage, liability, loss or cost, including
reasonable attorney's fees (any such damage, liability, loss or cost being
hereinafter referred to as an "Indemnified Loss"), arising out of or resulting
from, and will pay Seller on demand the full amount Seller may pay or become
obligated to pay in respect of any claim, suit or proceeding based upon or
arising out of:
(a) any Assumed Liability;
(b) any material inaccuracy in any representation or any material breach by
Buyer of any warranty made by Buyer in this Agreement;
(c) any liability for alleged discrimination arising from Buyer's not
extending an offer of employment to any employee of the Sensor Products
Business; and
(d) any liability arising from the operation of the Sensor Products
Business after the Closing.
Seller shall give prompt written notice to Buyer of any claim that might
give rise to an Indemnified Loss, stating the nature, basis and amount thereof,
if known, or a reasonable estimate of such amount. In case of any suit, claim,
action or proceeding to which this Section 6.7 may apply, Buyer may participate
therein, and, to the extent that Buyer may wish, to assume the defense thereof,
and after notice from Buyer to Seller of its election so to assume the defense,
Buyer shall not be liable to Seller for additional legal or other costs
subsequently incurred by Seller in connection with the defense. Seller agrees to
make available to Buyer and its counsel, at all reasonable times during normal
business hours, all books and records of Seller relating to such suit or
proceeding and to provide Buyer with such assistance as Buyer may reasonably
require to insure a proper and adequate defense.
VII. GENERAL PROVISIONS.
7.1. Survival The representations, warranties, covenants and agreements
provided for in this Agreement shall survive the Closing and be unaffected by
any investigation made by or on behalf of any party hereto.
7.2. Public announcement. Buyer and Seller agree that neither shall,
without the prior written approval of the other, make any additional press
release or other public announcement concerning the transactions contemplated by
this Agreement, except as and to the extent that any such party shall be so
obligated by law or by the rules and regulations of any competent regulatory
body or any securities exchange on which its securities are traded, in which
case the other party shall be advised in writing in advance, and the parties
shall use their best efforts to cause a mutually agreeable release or
announcement to be issued. Buyer and Seller have agreed to jointly issue the
press release in the form of the attached Exhibit D promptly following the
Closing.
7.3. Notices. Any notice, request, instruction or other document required
to be given hereunder shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid, by overnight courier or by
facsimile, cablegram or telex, according to the instructions set forth below.
Such notices shall be deemed given: at the time delivered by hand, if personally
delivered; at the time received if sent by registered or certified mail; one
business day after deposited with an overnight courier (provided sender obtains
written evidence of delivery from the courier); at the time when receipt is
confirmed by the receiving facsimile machine if sent by facsimile (provided
written notice by one of the other means is sent on the same day); and when
answered back if sent by cablegram or telexed.
If to Buyer, to:
Martin Kits van Heyningen
President & Chief Executive Officer
KVH Industries Inc.
50 Enterprise Center
Middletown, Rhode Island 02842
Telecopy: (401) 849-0045
Telephone: (401)847-3327
with a copy to:
Adam Sonnenschein
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
Telecopy: (617) 832-7000
Telephone: (617) 832-1158
If to Seller, to:
James F. Petelle
Secretary and General Attorney
Andrew Corporation
10500 West 153rd Street
Orland Park, Illinois 60462
Telecopy: (708) 873-2571
Telephone: (708)-873-2570
With a copy to:
Dewey B. Crawford
Gardner, Carton & Douglas
Quaker Tower
321 North Clark Street
Suite 3400
Chicago, Illinois 60610-3381
Telecopy: (312) 644-3381
Telephone: (312) 245-8422
7.4. Governing Law. Except as otherwise provided herein, this Agreement
shall be governed by and construed in accordance with the internal laws of the
State of Illinois.
7.5. Expenses. Regardless of whether the transactions provided for in this
Agreement are consummated, each party shall pay its own expenses incident to
this Agreement and to preparing to consummate the transactions provided for
herein.
7.6. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, and their successors and assigns;
provided, however, that no party may assign any or all of its rights hereunder
without the prior written consent of the other party.
7.7. Parties in Interest. Nothing in this Agreement is intended to confer
any rights or remedies under or by reason of this Agreement on any persons other
than Buyer and Seller and their respective successors and permitted assigns.
7.8. Execution in Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original agreement, but all
of which together shall constitute one and the same instrument.
7.9. Titles and Heading. Titles and headings to sections herein are for
purposes of reference only and shall in no way limit, define or otherwise affect
the provisions herein.
7. 1 0. Entire Agreement. This Agreement and the deeds, assignments and
other instruments of transfer and conveyance exchanged by the parties at the
Closing shall constitute the entire agreement among the parties with respect to
the matters covered hereby and thereby and shall supersede all previous written,
oral or implied understandings among the parties with respect to such matters.
7.1 1. Amendment and Modification. This Agreement may be amended, modified
- -or supplemented only by mutual consent set forth in a writing duly signed by
the parties hereto.
7.12. Time. Time is of the essence under this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day
and year first above written.
KVH INDUSTRIES, INC.
By: Name:/s/Richard C. Forsyth Title: CFO
ANDREW CORPORATION
By: Name:/s/ F.L. English Title: President