AMENDMENT NO. 3 TO PURCHASE AND SALE AGREEMENT
AMENDMENT
NO. 3 TO PURCHASE AND SALE AGREEMENT
This
AMENDMENT NO. 3 TO PURCHASE AND SALE AGREEMENT (this “Third
Amendment”) dated as of January 31, 2008, is by and among ASC Signal
Corporation, a corporation incorporated under the laws of Delaware (the “Purchaser”), ▇▇▇▇▇▇
Corporation, a Delaware corporation (“▇▇▇▇▇▇”), and ▇▇▇▇▇▇
Canada Inc., ▇▇▇▇▇▇ Limited, ▇▇▇▇▇▇ Holdings (Germany) GmbH, (each a “Seller”, and
collectively with ▇▇▇▇▇▇, the “Sellers”). Purchaser
and Sellers may be referred to individually as a “Party”
and
collectively as the “Parties.”
WHEREAS,
the Parties have
previously entered into that certain Purchase and Sale Agreement (the “Original
Agreement”), made as of November 5, 2007;
WHEREAS,
the Parties have
previously entered into that certain Amendment No. 1 to Purchase and Sale
Agreement, made as of December 20, 2007, and that certain Amendment No. 2 to
Purchase and Sale Agreement, made as of December 28, 2007, in each case amending
the Original Agreement; and
WHEREAS,
the Parties desire to
further amend the Original Agreement, as permitted by Section 13.2
thereof;
NOW,
THEREFORE, in
consideration of the premises and the mutual agreements and covenants set forth
herein, the Parties agree as follows:
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1.
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Amendment
to Section
1.1. Section
1.1 of
the Original Agreement is hereby amended and restated to include
or amend
and restate, as the case may be, the following
definitions:
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“Actual
Accrued Vacation
Payment” shall have the meaning set forth in Section 11.8.
“▇▇▇▇▇▇
China” shall
have the meaning set forth in Section 6.24.
“Australian
Margin”
shall have the meaning set forth in Section
6.21(b).
“Brazilian
Customers”
shall mean Star One, Globo Comunicacao e Participacoes and Siemens and
any other
customer doing business in Brazil, in each case solely with respect to the
Business.
“Brazilian
Margin”
shall have the meaning set forth in Section
6.22(b).
“Brazilian
Purchase
Orders” shall have the meaning set forth in Section
6.22(a).
“Broadcast
Australia”
shall have the meaning set forth in Section
6.21(a).
“Broadcast
Australia Purchase
Orders” shall have the meaning set forth in Section
6.21(a).
“Chinese
Assets” shall
have the meaning set forth in Section 6.24.
“Deferred
Transaction
Assets” is amended to include the phrase “and excluding any reserves
taken against Inventory that are related to the sale of the Business”
immediately after “Calculation Principles” in subsection (ii) of this
definition.
“Employee
Wages” shall
have the meaning set forth in Section 6.26.
“ESA
Agreement” shall
mean the Purchase Agreement between ▇▇▇▇▇▇ and Purchaser for the supply by
▇▇▇▇▇▇ to Purchaser of earth station antennas and accessories.
“Estimated
Accrued Vacation
Payment” shall have the meaning set forth in Section 11.8.
“Final
Deferred Inventory
Value” shall replace the term “Final Deferred Asset Value”.
“Hwadar”
shall
have
the meaning set forth in Section 6.24.
“Initial
Deferred Inventory
Value” shall replace the term “Initial Deferred Asset Value”.
“Lathe
Operational
Actions” shall have the meaning set forth in Section 6.17.
“Net
Inventory Amount”
shall mean the aggregate value (excluding any reserves taken against
Inventory
that are related to the sale of the Business) of the Inventory, including the
Reserved Inventory, as of the Closing Date, net of reserves, in each case as
determined in accordance with the Calculation Principles.
“Other
Letters of
Credit” shall mean those certain letters of credit set forth on Schedule
4.12 (k),
Items1,
2,
4
and 5.
“Purchaser
SAP System”
shall have the meaning set forth in Section 6.26.
“Reserved
Inventory”
shall mean the Inventory set forth on Schedule
2.5(s) under
the subsection Reserved
Inventory listed by item and location that (i) is retained by the Sellers
post-Closing and not transferred to the Purchaser pursuant to the terms of
this
Agreement; and (ii) shall be included for purposes of calculating the Net
Inventory Amount; provided, however,
that
notwithstanding the foregoing, in no event shall the inclusion of any items
set
forth on Schedule
2.5(s) that do not constitute Inventory be included for purposes of
calculating the Net Inventory Amount.
“SAP
Delivery Period”
shall have the meaning set forth in Section 6.26.
“Shin”
shall
have the
meaning set forth in Section 6.25.
“Shin
Letter of
Credit” shall have the meaning set forth in Section 6.25.
“Targeted
Completion
Date” shall have the meaning set forth in Section 6.17.
“Work
Stoppage Day”
shall have the meaning set forth in Section 6.26.
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2.
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Amendment
to Section
3.1(e). Section
3.1(e)
of the Original Agreement is hereby amended and restated as
follows:
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On
the
Deferred Transaction Date, the Purchaser shall issue to ▇▇▇▇▇▇ the Second Seller
Promissory Note in exchange for the Deferred Transaction Assets, which such
assets shall be usable in the ordinary course; provided, however,
that (i) if
the value of the Inventory, excluding any reserves taken against Inventory
that
are related to the sale of the Business, that is part of the Deferred
Transaction Assets transferred to Purchaser on the Deferred Transaction Date,
as
calculated consistent with the Calculation Principles (the “Final Deferred Inventory
Value”), is less than the value of the Inventory located at the Reynosa,
Mexico facility (such value to exclude any reserves taken against Inventory
that
are related to the sale of the Business) as reflected in the Closing Statement
as finally determined in accordance with Section 3.2 (the
“Initial
Deferred
Inventory Value”), then ▇▇▇▇▇▇ shall pay Purchaser an amount in cash
equal to such deficiency; and (ii) if the Final Deferred Inventory Value is
greater than the Initial Deferred Inventory Value, then, in addition to the
Second Seller Promissory Note, the Purchaser shall pay ▇▇▇▇▇▇ an amount in
cash
equal to the value of the Inventory attributable to such excess as such value
is
determined in accordance with the terms of the ESA Agreement; provided, however,
that ▇▇▇▇▇▇
shall use its reasonable best efforts to cause the Final Deferred Inventory
Value not to exceed the Initial Deferred Inventory Value, except to the extent
such excess is a result of performing its obligations in the ordinary course
or
instructions made by or received from the Purchaser pursuant to the ESA
Agreement. Between the Closing Date and the Deferred Transaction
Date, ▇▇▇▇▇▇ shall keep the Purchaser apprised of the value of the Deferred
Transaction Assets (estimated in a manner consistent with the Calculation
Principles and excluding any reserves taken against Inventory that are related
to the sale of the Business) as often as reasonably practicable, but in no
event
less than on a monthly basis. To the extent that there is a dispute
with the calculation of the Final Deferred Inventory Value, then the parties
shall follow the procedures outlined in Section
3.2(c).
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3.
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Amendment
to Section
3.2(a). Section
3.2(a)
of the Original Agreement is hereby amended and restated to insert
“and
shall exclude any reserves taken against Inventory made that are
related
to the sale of the Business” immediately after “Calculation Principles” in
the last sentence of this Section.
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4.
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Amendments
to Section
3.4.
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(a)
Section
3.4(a)(iii) of the Original Agreement is hereby amended and restated as
follows:
(iii)
For the purposes of calculating
Cumulative EBITDA, the Parties hereby agree that EBITDA shall:
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(A)
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not
include the appropriate financial items for any Person or business
unit of
a Person (including product lines), that has been directly or indirectly
acquired by the Purchaser or Skyware during such relevant period;
providedhowever,
if
such Person or business unit of a Person (including product lines),
so
acquired manufactures or sells products that would be reasonably
expected
to result in a material reduction of Cumulative EBITDA to be derived
from
the manufacture and sale of products manufactured and sold by the
Business
as it is conducted by the Sellers and Skyware immediately prior to
Closing
(the “Existing
Products”) that would not have occurred but for such acquisition,
and the aggregate amount of the trailing twelve month EBITDA (the
“TTM EBITDA”)
derived from the manufacture and sale of the applicable Existing
Products
was an amount greater than zero, the EBITDA Target Amount shall be
(1)
decreased by an amount equal to: (x) the aggregate amount of
the TTM EBITDA derived from such applicable Existing Products multiplied
by (y) a fraction, the numerator of which is the number of months
that
remain in the Earnout Period at the time of such acquisition and
the
denominator of which is twelve (12), and (2) increased by an amount
equal
to the lesser of (x) the amount by which the EBITDA Target Amount
was
decreased in accordance with Section
3.4(a)(iii)(A)(1) above or (y) the amount of actual EBITDA derived
from the manufacture and sale of the applicable Existing Product
after
such acquisition;
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(B)
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not
include the appropriate financial items for any Person or business
unit of
a Person (including product lines), that Purchaser or Skyware has
ceased
to operate, or that has been directly or indirectly disposed of by
Purchaser or Skyware, in each case for the period beginning on the
date of
such cessation or disposition and ending at the end of the Earnout
Period;
provided however, if the Person or business unit of a Person (including
product lines), so ceased or disposed of had a positive impact on
EBITDA
as determined by review of its TTM EBITDA prior to such cessation
or
disposition, the EBITDA Target Amount shall be decreased by an amount
equal to: (x) the aggregate amount of the TTM EBITDA derived from
such
Person or business unit of a Person (including product lines), multiplied
by (y) a fraction, the numerator of which is the number of months
that
remain in the Earnout Period at the time of the cessation or disposition
and the denominator of which is twelve (12); and
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(C)
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not
include the recognition of that portion of any income attributable
to the
sale of any Inventory to the extent that such portion of any income
resulted from such Inventory being accounted for on the balance sheet
of
Purchaser immediately after Closing in an amount less than the amount
such
Inventory was accounted for on the balance sheet of ▇▇▇▇▇▇ immediately
prior to Closing.
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(b)
The Original Agreement is hereby amended and restated to include the following
Section 3.4(e)
and the end of Section
3.4:
Allocation
of the Earnout
Payment. For purposes of the allocation contemplated in Section 3.3 of
this
Agreement, any Earnout Payment made by the Purchaser to Sellers shall be
allocated among the parties as if the total amount of such Earnout Payment
was
paid to ▇▇▇▇▇▇ Corporation by ASC Signal Corporation.
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5.
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Amendment
to Section
4.11. The Original Agreement is hereby amended and
restated to insert the following sentence at the end of Section
4.11:
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For
purposes of this Section 4.11 only,
▇▇▇▇▇▇ AG shall be deemed to be a Seller.
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6.
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Amendment
to Section
6.3(b). Section
6.3(b)
of the Original Agreement is hereby amended and restated to delete
“Governmental Required Consents” from this Section and replace such term
with “Consents of Governmental
Authorities.”
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7.
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Amendments
to Section
6.11.
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(a)
Section 6.11(a)
of the Original Agreement is hereby amended and restated to include the phrase
“Except as provided in Section 6.21 and
Section
6.22,”
at the very beginning of Section
6.11(a).
(b)
The last paragraph of Section 6.11 of the
Original Agreement is hereby amended and restated as follows:
Notwithstanding
anything to the contrary, Section 6.11(a) shall
not apply to (i) PCT International, Inc. or its Subsidiaries; (ii) any Minor
Competing Business, so long as Seller and its Affiliates have complied with
the
terms of Section
6.11(c) hereof with respect to such Minor Competing Business; provided
that Section
6.11 shall apply to any acquisition made by such Minor Competing
Business; and (iii) any Contract under which Sellers manufacture products on
behalf of, or supply products to, Purchaser or any of its Affiliates, including,
without limitation, the (x) Purchase Agreement, dated January 31, 2008, between
▇▇▇▇▇▇ Corporation and ASC Signal Corporation for the supply of earth station
antennas and accessories, (y) Purchase Agreement, dated January 31, 2008,
between ▇▇▇▇▇▇ Corporation and ASC Signal Corporation for the supply of ▇▇▇▇▇▇
▇▇▇▇▇ products and accessories and (z) Purchase Agreement, dated January 31,
2008, between ▇▇▇▇▇▇ Corporation and ASC Signal Corporation for the supply
of
precision antennas and spares.
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8.
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Amendment
of Section
6.14. Section
6.14 of
the Original Agreement is hereby amended and restated as
follows:
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Upon
the
expiration or termination of the ESA Agreement (such date, the “Deferred Transaction
Date”), each Seller shall sell, assign, transfer and deliver to the
Purchaser, and the Purchaser shall purchase and acquire from such Seller, and
take assignment and delivery from such Seller of, all of such Seller’s right,
title and interest in and to the Deferred Transaction Assets, free and clear
of
all Liens (other than Permitted Liens) in exchange for the payment provided
in
Section 3.1(e)
hereof.
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9.
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Amendment
to Section
6.15. Section
6.15 of
the Original Agreement is hereby amended and restated as
follows:
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With
respect to any of the Transferred Intellectual Property that is or should have
been listed on Schedule 1.1H or
Schedule
1.1K
and, as of the date hereof, appears on any public records as being owned by
any
Person other than ▇▇▇▇▇▇, ▇▇▇▇▇▇ shall promptly record in such public record(s)
evidence, in a form reasonably satisfactory to Purchaser, of Andrew’s ownership
of all right, title and interest therein free and clear of all
Liens. ▇▇▇▇▇▇ shall use reasonable best efforts to complete such
recording activities before the Closing; provided, however,
that without
waiving any rights of the Purchaser arising herein, in the event ▇▇▇▇▇▇ does
not, for any reason, complete such recording activities before the Closing,
▇▇▇▇▇▇ shall be responsible for any related fees and expenses necessary to
complete such recording activities after the Closing.
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10.
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Amendment
to Section
6.17. Section
6.17 of
the Original Agreement is hereby amended and restated as
follows:
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At
a time
following the Closing reasonably agreed to in good faith by Purchaser and
▇▇▇▇▇▇, Purchaser shall inspect the spin lathe transferred to the Purchaser
and
located at Sellers’ Brownsville, Texas facility and related assorted equipment
located at Sellers’ other facilities (collectively, the “Brownsville Spin
Lathe”) to determine whether such equipment is in good working order and
possesses the same production capabilities (including quality and quantity)
with
respect to products currently produced for the Business as currently possessed
by the spin lathe located in Reynosa, Mexico (the “Reynosa Spin
Lathe”). In the event that the Brownsville Spin Lathe is not
in good working order or is missing any component parts or equipment, Sellers
shall reimburse Purchaser for the costs to repair the Brownsville Spin Lathe
or
purchase such missing component parts or equipment, to the extent such costs
exceed $10,000 (except with respect to any costs related to missing
parts). In the event that the Brownsville Spin Lathe does not possess
the production capabilities (including quality and quantity) with respect to
products currently produced for the Business as currently possessed by the
Reynosa Spin Lathe, Sellers, at their discretion, shall either (i) make such
capital expenditures to the Brownsville Spin Lathe (including the purchase
of
additional equipment) to conform the Brownsville Spin Lathe to substantially
the
same production capabilities (including quality and quantity) relating to
products produced for the Business as the Reynosa Spin Lathe; or (ii) replace
the Brownsville Spin Lathe with a spin lathe in good working order that is
capable of producing products currently produced by the Business in
substantially the same quantity and quality produced by the Reynosa Spin Lathe
for the Business (collectively, the “Lathe Operational
Actions”), until such time as Sellers have fulfilled the Lathe
Operational Actions, Sellers shall provide to Purchaser at the cost incurred
by
Sellers to produce, product of the same quality and quantity as currently
produced for the Business by the Reynosa Spin Lathe; provided, further,
that
notwithstanding the foregoing, in the event that the Lathe Operational Actions
are not completed within 90 days from Closing Date (the “Targeted Completion
Date”), Sellers shall, at the election of the Purchaser, continue to
provide such products on the terms set forth above until such date that is
the
one year anniversary of the Closing Date, plus the number
of
days past the Targeted Completion Date on which the Lathe Operational Actions
were completed. Purchaser shall use reasonable best efforts to
facilitate Sellers’ delivery and installation of a spin lathe consistent with
the terms of this Section 6.17 by the
Targeted Completion Date, including allowing Sellers reasonable access to
Purchaser’s facilities.
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11.
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Addition
of Section
6.21 to Original Agreement. The Original Agreement is
hereby amended and restated to insert the following Section
6.21 at
the end of Article
VI:
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6.21
Open Broadcast
Australia Purchase Orders.
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(a)
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From
and after Closing, Sellers shall continue to perform under the ▇▇▇▇▇▇
sales orders numbered 1668247 and 1671173 (the “Broadcast
Australia
Purchase Orders”) with Broadcast Australia Party Ltd. (“Broadcast
Australia”) and shall provide the products and services to
Broadcast Australia pursuant to the terms thereof; provided,
however,
that,
except for Sellers’ fraud, gross negligence or willful misconduct, the
Purchaser shall assume and shall agree to pay, as Assumed Obligations
hereunder, any and all obligations and liabilities arising with respect
to
the products or services provided under the Broadcast Australia Purchase
Orders, whether sold or provided prior to or after the Closing, and
whether arising under warranty, contract, equity, tort, strict liability,
product liability, statute or otherwise, including all obligations
and
liabilities arising with respect to any pending recalls of products
that
have been sold pursuant to such Broadcast Australia Purchase
Orders. Any Inventory related to or required for the
fulfillment of the Broadcast Australia Purchase Orders shall be retained
by Sellers following Closing and such Inventory shall not be transferred
to the Purchaser pursuant to the terms of this Agreement; provided,
however,
that
such retained Inventory shall be included for purposes of calculating
the
Net Inventory Amount pursuant to Section
3.2
hereof. Sellers and Purchaser agree that any Australian Margin
collected by Sellers on account of the post-Closing sale of products
and
services under the Broadcast Australia Purchase Orders shall be allocated
between the Sellers and Purchaser such that 1/3 of such Australian
Margin
shall be retained by the Sellers and 2/3 of such Australian Margin
shall
be paid to the Purchaser. The Parties acknowledge and agree
that the provisions of Section
6.11
hereof shall not apply to the Sellers’ performance of the Broadcast
Australia Purchase Orders.
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(b)
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For
purposes of this Section
6.21,
“Australian Margin” shall apply only to products and services invoiced
after the Closing and shall be equal to (i) all cash collected by
Sellers
from Broadcast Australia under the Broadcast Australia Purchase Orders,
less (ii) the Sellers’ cost of goods sold under such Broadcast Australia
Purchase Orders (which calculation will be consistent with the manner
by
which cost of goods sold historically has been calculated by the
Sellers
for sales of goods of these sort), plus (iii) the net book value
of
Reserved Inventory on hand at Closing used by Sellers to satisfy
such
Broadcast Australia Purchase Orders.
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(c)
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Except
for the Broadcast Australia Purchase Orders, any products or services
due
under any other purchase orders issued after the Closing with Broadcast
Australia relating to the Business shall be the sole obligation of
Purchaser and such purchase orders shall be fulfilled by the Purchaser
in
accordance with the terms thereof.
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12.
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Addition
of Section
6.22 to Original Agreement. The Original Agreement is
hereby amended and restated to insert the following Section
6.22 at
the end of Article
VI:
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6.22
Brazilian Purchase
Orders.
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(a)
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From
and after Closing, Sellers shall perform under the ▇▇▇▇▇▇ sales orders
numbered 1704175, 1727452, 1727360 and 1727362 with certain Brazilian
Customers (collectively, the “Brazilian
Purchase
Orders”) and shall provide the products and services to the
Brazilian Customers pursuant to the respective terms thereof; provided,
however, that, except for Sellers’ fraud, gross negligence or willful
misconduct, the Purchaser shall assume and shall agree to pay, as
Assumed
Obligations or otherwise, any and all obligations and liabilities
arising
with respect to the products or services provided under the Brazilian
Purchase Orders, whether sold or provided prior to or after the Closing,
and whether arising under warranty, contract, equity, tort, strict
liability, product liability, statute or otherwise, including all
obligations and liabilities arising with respect to any pending recalls
of
products that have been sold pursuant to such Brazilian Purchase
Orders. Any Inventory related to or required for the
fulfillment of the Brazilian Purchase Orders shall be retained by
Sellers
following Closing and such Inventory shall not be transferred to
the
Purchaser pursuant to the terms of this Agreement; provided, however,
that
such retained Inventory shall be included for purposes of calculating
the
Net Inventory Amount pursuant to Section 3.2 hereof. Sellers
and Purchaser agree that any Brazilian Margin collected by Sellers
on
account of the post-Closing sale of products and services under the
Brazilian Purchase Orders shall be allocated between the Sellers
and
Purchaser such that 1/3 of such Brazilian Margin shall be retained
by the
Sellers and 2/3 of such Brazilian Margin shall be paid to the
Purchaser. The Parties acknowledge and agree that the
provisions of Section
6.11
hereof shall not apply to the Sellers’ performance of the Brazilian
Purchase Orders.
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(b)
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For
purposes of this Section
6.22,
“Brazilian Margin” shall apply only to products and services invoiced
after the Closing and shall be equal to (i) all cash collected by
Sellers
from the Brazilian Customers under the Brazilian Purchase Orders,
less
(ii) the Sellers’ cost of goods sold under such Brazilian Purchase Orders
(which calculation will be consistent with the manner by which cost
of
goods sold historically has been calculated by the Sellers for sales
of
goods of these sort), plus (iii) the net book value of Reserved Inventory
on hand at Closing used by Sellers to satisfy such Brazilian Purchase
Orders.
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(c)
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Except
for the Brazilian Purchase Orders, any products or services due under
any
other purchase orders issued after the Closing to Brazilian Customers
relating to the Business shall be the sole obligation of Purchaser
and
such purchase orders shall be fulfilled by the Purchaser in accordance
with the terms thereof.
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13.
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Addition
of Section
6.23 to Original Agreement. The Original Agreement is
hereby amended and restated to insert the following Section
6.23 at
the end of Article
VI:
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6.23
Transfer of Anatel
Certifications of Conformity. Subject to all necessary
approvals (governmental or otherwise) required for the transfer of and
assignment of the Anatel Certifications of Conformity, when requested by
Purchaser, provided that such request shall be made within 90 days after the
Closing or such other time as mutually agreed to by both Purchaser and ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ shall assign and transfer to Purchaser or its designee, and the Purchaser
or such designee shall take assignment of, all of Andrew’s right, title and
interest in and to the Anatel Certifications of Conformity set forth on Schedule
6.23. Any costs or expenses incurred in the transfer of and
assignment of the Anatel Certifications of Conformity to Purchaser or its
designee as provided herein shall be paid by the Purchaser.
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14.
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Addition
of Section
6.24 to Original Agreement. The Original Agreement is
hereby amended and restated to insert the following Section
6.24 at
the end of Article
VI:
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6.24.
Transfer of Certain
Chinese Assets. Upon the request of the Purchaser, as soon as
practicable after the Closing Date, the Sellers and their Affiliates shall
reasonably assist the Purchaser, at Purchaser’s cost and expense (other than any
legal expenses incurred by Sellers relating to subsection (i) below), in (i)
entering into an assignment agreement by and among ▇▇▇▇▇▇ Telecommunications
(China) Co. (“▇▇▇▇▇▇
China”), Hwadar SMC & Communication Products Co. Ltd. (“Hwadar”)
and the
Purchaser or its designee, whereby ▇▇▇▇▇▇ China assigns its interest in any
Assets located in the People’s Republic of China (the “Chinese Assets”) to
Purchaser or its designee, (ii) completing a new export processing contract
with
Hwadar related to the Chinese Assets, and (iii) making any regulatory filings
with any Governmental Authority in the People’s Republic of China related to the
Chinese Assets.
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15.
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Addition
of Section
6.25 to the Original Agreement. The Original Agreement
is hereby amended and restated to insert the following Section
6.25 at
the end of Article
VI:
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6.25 Shin
Letter of
Credit. From and after the Closing Date, in the event that
Shin Satellite Public Co. Ltd. (“Shin”) requests
that
the Sellers allow Shin to reduce the face amount of that certain letter of
credit issued on behalf of Shin in favor of Sellers or their Affiliates (the
“Shin Letter of
Credit”) to an amount not less than the amount of Accounts Receivable
owed by Shin to Sellers or their Affiliates, Sellers shall agree to such request
and shall execute such documents as are provided to Sellers and reasonably
necessary to allow for such reduction. Further, upon the written
request of Purchaser, Sellers and their Affiliates shall use their reasonable
best efforts to (i) assign the Other Letters of Credit to Purchaser or its
designee, (ii) replace the beneficiary under such Other Letters of Credit with
Purchaser or its designee, or (iii) cancel or terminate the Other Letters of
Credit, in each case to the extent (A) such action has been negotiated and
agreed to between Purchaser and the applicable counterparty to which the
applicable Other Letter of Credit applies, (B) permitted by the Other Letters
of
Credit or under applicable law and (C) at Purchaser’s expense.
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16.
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Addition
of Section
6.26 to the Original Agreement. The Original Agreement
is hereby amended and restated to insert the following Section
6.26 at
the end of Article
VI:
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6.26 Purchaser
SAP
System.
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(a)
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As
promptly as practicable after the date hereof, Seller shall use reasonable
best efforts to create a SAP accounting and information system (the
“Purchaser
SAP
System”) for use by the Purchaser and its Affiliates in the
operation of the Business after the Closing Date. The Purchaser
SAP System shall be based upon that portion of the current SAP accounting
and information system used by the Sellers in connection with the
operation of the Business. The parties hereby acknowledge that
the establishment of the Purchaser SAP System shall not be completed
by
Seller until after the Closing.
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(b)
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From
the Business Day immediately following the Closing until the date
on which
the Purchaser SAP System is delivered by Sellers to Purchaser in
accordance with this Section
6.26
(the “SAP
Delivery Period”), if Purchaser or its Affiliates are unable to
operate the Business in all material respects for the majority of
any
Business Day (as measured from 8:00 a.m. to 5 p.m. EST) as a direct
result
of Sellers’ failure to deliver the Purchaser SAP System in good working
order (a “Work
Stoppage Day”), the parties hereby agree that Purchaser or its
Affiliates, as applicable, shall be reimbursed or credited by Sellers
or
its Affiliates with respect to employee wages (and other payments,
if any,
required to be made to Governmental Authorities by the payer of wages
that
are attributable to such wages) (the “Employee
Wages”) incurred by the Purchaser or its Affiliates with respect
to
any Transferred US Employee, Transferred Canadian Employee, Transferred
UK
Employee or Skyware Employee for such Work Stoppage Day, as follows:
(i)
100% of Employee Wages for the first Work Stoppage Day following
Closing;
(ii) 25% of Employee Wages for the second Work Stoppage Day following
Closing; (iii) 50% of Employee Wages for the third Work Stoppage
Day
following Closing; (iv) 75% of Employee Wages for the fourth Work
Stoppage
Day following Closing; and (v) 100% of Employee Wages for the fifth
Work
Stoppage Day following Closing and each Work Stoppage Day thereafter
until
the Purchaser SAP System is delivered by Sellers to Purchaser in
good
working order in all material respects. The parties hereby
agree to settle any such undisputed reimbursements or credits, in
each
case as more specifically set forth above, as a credit against amounts
due
and owing by Purchaser for Transition Services (as such term is defined
in
the Transition Services Agreement) provided by Sellers to Purchaser
or its
Affiliates. For purposes of this Section
6.26,
except for the first Work Stoppage Day immediately following the
Closing
Date, the Purchaser shall use reasonable best efforts to operate
the
Business on each Business Day during the SAP Delivery Period even
if the
Purchaser SAP System is not fully available or fully functioning
on such
Business Day. The parties further acknowledge and agree that
beginning on the second Business Day after Closing, Sellers or its
Affiliates will begin to charge Purchaser or its Affiliates for any
fees
or expenses relating to Transition Services rendered to the Purchaser
or
its Affiliates. For the avoidance of doubt, the foregoing
obligations of Sellers or its Affiliates, including any reimbursements
or
credits to Purchaser or its Affiliates on account of Employee Wages,
shall
terminate upon the delivery by the Sellers to the Purchaser of the
Purchaser SAP System in good working order in all material respects.
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17.
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Amendment
to Section
11.1(c). Section
11.1(c)
of the Original Agreement is hereby amended and restated as
follows:
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Offers
of Employment to
Current Other Employees. The Purchaser shall offer employment to each
Current Other Employee, other than the Current Other Employee listed on Schedule 11.1(c)(i).
Such offers of employment shall be on terms and conditions substantially similar
to the terms and conditions (including geographic work location) on which such
employees are employed by the Sellers or their Affiliates, as applicable, on
the
Closing Date. Without limiting the foregoing, the Purchaser’s offers of
employment shall be at substantially the same position and level of compensation
and benefits as applied to such employees immediately prior to the Closing,
shall also be subject to the terms and conditions of this Article XI with
respect to Current Other Employees and shall in any event comply with applicable
Law. Such offers of employment shall be effective as of a date to be mutually
agreed upon by the Sellers and the Purchaser, but in no event later than 60
days
after the Closing Date; provided, however,
that with
respect to the Current Other Employees listed on Schedule 11.1(c)(ii),
such offers of employment shall be effective no later than 120 days after the
Closing Date (any such date, the “Other Employees’ Transfer
Date”). Each such Current Other Employee who accepts the
Purchaser’s offer of employment shall become an employee of the Purchaser and
its Affiliates as of the Other Employees’ Transfer Date and shall, from and
after such date, be a “Transferred Other
Employee,” and the Purchaser shall assume, bear and discharge all
employment liabilities with respect to such Transferred Other Employee from
and
after such date. Notwithstanding the foregoing, the Purchaser will be
under no obligation to continue to employ any Transferred Other Employee for
any
period of time; provided, however,
that the
Purchaser shall satisfy the severance obligations described in Section 11.13.
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18.
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Addition
of Section
6.27 to the Original Agreement. The Original Agreement
is hereby amended and restated to insert the following Section
6.27 at
the end of Article
VI:
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6.27 ▇▇▇▇▇▇
Landlord
Waiver. As soon as practicable after the Closing Date, upon
the written request of Purchaser, Sellers and their Affiliates shall execute
and
deliver to Purchaser a landlord waiver agreement, in a form reasonably
acceptable to PNC Bank, N.A. and customary for transactions of this type, with
respect to the ▇▇▇▇▇▇ Property.
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19.
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Amendment
to Section
11.8. Section
11.8 of
the Original Agreement is hereby amended and restated as
follows:
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11.8 Vacation
for Transferred
Canadian Employees. Subject to this Section 11.8,
with
respect to any accrued but unused paid vacation time and/or unpaid vacation
pay
(as applicable) to which any Transferred Canadian Employee is entitled as of
the
Closing Date pursuant to applicable Law or the vacation policy of the Sellers
and their Affiliates applicable to such Transferred Canadian Employee
immediately prior to the Closing Date (the “Canadian Vacation
Policy”), the Sellers and their Affiliates shall pay to the Purchaser (by
way of a reduction to the Cash Payment) an amount equal to $439,048 at Closing,
which amount shall equal the Sellers’ good faith estimate of the total wages
(and total payments, if any, required to be made to Governmental Authorities
by
the payer of wages that are attributable to such wages) relating to such unused
vacation time and/or unused vacation pay (as applicable) (the “Estimated Accrued
Vacation
Payment”). Within thirty (30) days after the Closing,
Purchaser shall provide ▇▇▇▇▇▇ with a statement setting forth the Purchaser’s
good faith determination of the total amount of wages (and total payments,
if
any, required to be made to Governmental Authorities by the payer of wages
that
are attributable to such wages) attributable to accrued but unused paid vacation
time and/or unpaid vacation pay (as applicable) to which any Transferred
Canadian Employee was actually entitled as of the Closing Date pursuant to
applicable Law or the Canadian Vacation Policy (the “Actual Accrued Vacation
Payment”), together with reasonable supporting
documentation. In the event that ▇▇▇▇▇▇ agrees with Purchaser’s
determination of the Actual Accrued Vacation Payment, then (i) to the extent
that the Estimated Accrued Vacation Payment exceeds the amount of the Actual
Accrued Vacation Payment, the Purchaser shall reimburse such excess to the
Sellers within five (5) Business Days of Andrew’s agreement regarding the amount
of the Actual Accrued Vacation Payment, or (ii) to the extent that the Actual
Accrued Vacation Payment exceeds the amount of the Estimated Accrued Vacation
Payment, ▇▇▇▇▇▇ shall pay the amount of such excess in cash to Purchaser within
five (5) Business Days of Andrew’s agreement regarding the amount of the Actual
Accrued Vacation Payment. In the event that ▇▇▇▇▇▇ disagrees with
Purchaser’s determination of the amount of the Actual Accrued Vacation Payment,
▇▇▇▇▇▇ and Purchaser shall work together in good faith to resolve such
disagreement, and Purchaser shall provide ▇▇▇▇▇▇ with reasonable access to
the
books and records of Purchaser and its Affiliates relevant to the determination
of the Actual Accrued Vacation Payment. If the parties are unable to
resolve any such disagreement within thirty (30) days, the parties shall resolve
such disagreement in a manner consistent with the procedures established to
resolve adjustments in the Purchase Price as set forth in Section 3.2(c)
hereof. The Purchaser covenants that it will pay vacation pay to the
Transferred Canadian Employees in a cumulative amount not less than the Actual
Accrued Vacation Payment either at the times of their vacations or upon
termination of employment, or otherwise as required or permitted by Law (such
as
by agreement between employer and employee). For greater clarity, no
part of the Estimated Accrued Vacation Payment or the Actual Accrued Vacation
Payment will be used by the Purchaser to satisfy its obligations to Transferred
Canadian Employees in respect of vacation time or vacation pay earned by
Transferred Canadian Employees after the Closing Date. The
Purchaser’s offers of employment to Current Canadian Employees as described in
Section 11.1(b)
shall provide such employees with the opportunity to elect (in a manner that
complies with Section
36(4) of the Ontario Employment Standards
Act,
2000) to receive from the Purchaser a lump sum payment of the employee’s portion
of the Actual Accrued Vacation Payment no later than thirty (30) days after
the
Closing Date. Upon the Seller’s request, the Purchaser shall promptly
disclose to the Sellers each Current Canadian Employee’s election and, no later
than thirty (30) days after the Closing Date, the Purchaser shall
make to
each Transferred Canadian Employee who elects to receive such Actual Accrued
Vacation Payment early in accordance with the election provided by the Purchaser
a lump sum payment equal to such employee’s portion of the Actual Accrued
Vacation Payment. To the extent the Purchaser fails to make payment,
on or before thirty (30) days after the Closing Date, to any such electing
Transferred Canadian Employee of the employee’s portion of the Actual Accrued
Vacation Payment and ▇▇▇▇▇▇ makes such payment to such employee, the Purchaser
shall reimburse ▇▇▇▇▇▇ dollar-for-dollar for the amount of payments ▇▇▇▇▇▇
makes
in accordance with this Section 11.8.
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20.
|
Amendment
to Section
13.6. Section
13.6 of
the Original Agreement is hereby amended and restated as
follows:
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This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns; provided, that,
except with the written consent of the other parties, no assignment of this
Agreement or any rights or obligations hereunder, by operation of law or
otherwise, may be made by any party, other than to an Affiliate or lender of
such party (but no such assignment shall relieve the assigning party of its
obligations hereunder). Without diminishing the foregoing, (i) in the
event that any Seller (directly or indirectly) enters into a sale, lease, pledge
or disposal of all or substantially all of its respective assets, or the sale
of
all or substantially all of its respective capital stock or other equity
securities, or enters into a merger, consolidation or other acquisition with
any
other party, or any transaction similar to the foregoing in format or purpose,
such Seller shall require as a condition to the consummation of such
transaction, the other party’s written agreement to be liable for such Seller’s
obligations hereunder (including such Seller’s joint and several liability under
Article XII
herein), and (ii) the Purchaser may designate the Parent or any Person that
is a
wholly-owned subsidiary of the Parent as a designee for purposes of receiving
title to the Transferred Shares, the Assets or any portion of the Assets.
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21.
|
Effect
of Amendment;
Entire Agreement. Except as and to the extent expressly
modified by this Third Amendment or by previous amendments, the Original
Agreement shall remain in full force and effect in all
respects. The Original Agreement, as amended, contains the
entire agreement of the Parties on the subject matter of the Original
Agreement and neither Purchaser nor Sellers shall have any rights
or
obligations to each other except as explicitly provided for in the
Original Agreement, as amended. Each reference to “hereof,”
“herein,” “hereby,” and “this Third Agreement” in the Original Agreement
shall from and after the date hereof refer to the Original Agreement,
as
amended. Notwithstanding anything to the contrary herein, the
date of the Original Agreement, as amended hereby, shall in all instances
remain as November 5, 2007, and references in the Original Agreement
to
“the date first above written,” “the date of this Agreement,” and similar
references shall continue to refer to November 5,
2007.
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22.
|
Miscellaneous. The
construction, interpretation, and performance of this Third Amendment
shall be governed by the internal laws of Illinois. This Third
Amendment may be executed in one or more counterparts, each of which
independently shall share the same effect as if it were the original,
and
all of which taken together shall constitute one and the same Third
Amendment.
|
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Parties have caused this Third Amendment to be executed
as
of the date first written above.
| ASC SIGNAL CORPORATION | |||
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: President | |||
| ▇▇▇▇▇▇ CORPORATION | |||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇ | |||
| Title: Senior Vice President, General Counsel and Secretary | |||
| ▇▇▇▇▇▇ CANADA, INC. | |||
|
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: President | |||
| ▇▇▇▇▇▇ LIMITED | |||
|
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇ | |||
| Title: Chairman | |||
| ▇▇▇▇▇▇ HOLDINGS (GERMANY) GMBH | |||
|
|
By:
|
/s/ F. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. | |
| Name: F. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. | |||
| Title: Managing Director | |||