Contract
Exhibit
10.1
THIS
AGREEMENT dated as of March 26, 2008 (the “Agreement”) by and
among CommScope, Inc., a Delaware corporation (“CommScope”), Xxxxxx Corporation,
a Delaware corporation (“Xxxxxx”), Xxxxxx
Corporation Mauritius, a Mauritius corporation (“Xxxxxx Mauritius”,
and together with CommScope and Xxxxxx, the “Xxxxxx Parties”), Andes Industries,
Inc., a Nevada corporation (“Andes”), PCT
International, Inc., a Nevada corporation (“PCT International”),
PCT Mauritius Holding Limited, a private company incorporated in Mauritius under
the Companies Xxx 0000 (“PCT Mauritius”), Xx.
Xxxxxx Xxxxxxx, an individual (“Xxxxxxx”), and PCT
Broadband Telecommunications (Yantai) Co. Ltd., a wholly foreign-owned
enterprise organized and existing under the laws of the People’s Republic of
China (formerly known as Xxxxxx Broadband Telecommunications (Yantai) Co. Ltd.)
(“PCTY”, and
together with Andes, PCT International, PCT Mauritius and Xxxxxxx, the “Andes
Parties”).
RECITALS
WHEREAS,
Xxxxxx is a wholly-owned indirect subsidiary of CommScope and is the owner of
7,789,813 shares of Common Stock (the “Shares”) of Andes,
par value $0.001 per share (the “Common
Stock”);
WHEREAS,
PCT International issued a Senior Note, dated April 2, 2007, in favor of Xxxxxx,
in the original principal amount of $9,035,000 (the “Xxxxxx
Note”);
WHEREAS,
PCT Mauritius issued a Senior Note, dated March 30, 2007, in favor of Xxxxxx
Mauritius, which is a wholly-owned subsidiary of Xxxxxx, in the original
principal amount of $5,592,000 (the “Xxxxxx Mauritius
Note”);
WHEREAS,
Andes issued a Promissory Note, dated September 29, 2006, in favor of Xxxxxx, in
the original principal amount of $1,518,369.72 (the “Promissory Note”, and
together with the Xxxxxx Note and the Xxxxxx Mauritius Note, the “Notes”);
WHEREAS,
Xxxxxx and Xxxxxx Mauritius jointly hold a Warrant to Acquire Common Stock of
Andes dated April 2, 2007 (the “Warrant”);
WHEREAS,
the Xxxxxx Parties wish to transfer the Shares, the Notes and the Warrant to
Andes for the consideration and according to the terms, and pursuant to the
conditions, of this Agreement;
NOW,
THEREFORE, in consideration of the foregoing, the parties hereby agree as
follows:
1. Transactions.
1.1. Closing
Date. The closing of the transactions contemplated by this
Agreement (the “Closing”) shall be
held at the offices of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, One New
York Plaza, New York, New York, at 9:00 a.m., local time, on the third business
day after the satisfaction or waiver of the conditions set forth in Article 5
(excluding those conditions that, by their terms, cannot be satisfied until the
Closing, but the Closing shall be subject to the satisfaction or waiver of those
conditions), or at such other time, place or manner (including via facsimile) as
may be mutually agreed to by the parties hereto (the date on which the Closing
occurs being referred to in this Agreement as the “Closing
Date”).
1.2. Transfer of Shares, Notes
and Warrant. On the Closing Date, the Xxxxxx Parties shall
transfer to the respective issuing Andes Parties all of their right, title and
interest in and to the Shares, the Notes and the Warrant, free and clear of all
liens, security interests, encumbrances, mortgages, pledges or other
restrictions (“Encumbrances”). The
parties acknowledge and agree that the Xxxxxx Note and the Xxxxxx Mauritius Note
evidence purchase money indebtedness for the acquisition by the Andes Parties of
certain assets and that the transfer of the Xxxxxx Note and the Xxxxxx Mauritius
Note from the Xxxxxx Parties to the respective issuing Andes Parties reflects an
adjustment of the purchase price for such assets.
1.3. Transfer of Z-Wire Patent
and Related Know-How. On the Closing Date, Xxxxxx shall
transfer to Andes all of the right, title and interest of Xxxxxx in and to the
Z-Wire Intellectual Property pursuant to the Z-Wire IP Agreement (the “IP
Transfer Agreement”), attached hereto as Exhibit A; except
that pursuant to the IP Transfer Agreement, Xxxxxx will retain a non-exclusive
license to the Patents (as defined in the IP Transfer Agreement) for use of the
Patents in connection with products other than Drop Cable Products (as defined
in the IP Transfer Agreement). For the purposes hereof, “Z-Wire
Intellectual Property” means the following intellectual property owned by
Xxxxxx: (a) the trademark “Z-Wire,” together with U.S. trademark application
serial no. 78/658,023, and the goodwill associated therewith; (b) U.S. Patent
No. 7,048,343 and all counterparts thereof throughout the world; and (c) all
intellectual property, technology and know how of Xxxxxx identified on Schedule
A attached to the IP Transfer Agreement.
1.4. Waiver of
Rights. Effective as of the Closing, Andes and Xxxxxxx hereby
waive all rights to otherwise acquire, or prohibit the transfer of, the Shares
pursuant to the Bylaws of Andes (as amended, the “Bylaws”) and the
Amended and Restated Investor Rights Agreement (the “Investor Rights
Agreement”) dated as of March 30, 2007 by and between Andes, the
stockholders of Andes identified on the signature page thereto and Xxxxxx, or
otherwise.
1.5. Releases. On or
before the Closing Date, the Andes Parties, and each director, stockholder and
subsidiary of Andes (other than Xxxxxx), shall execute the Andes Release
substantially in the form of Exhibit B hereto
(“Andes
Release”) and the Xxxxxx Parties shall execute the Xxxxxx Release
substantially in the form of Exhibit C hereto
(“Xxxxxx
Release”).
1.6. Closing
Deliveries. At the Closing,
(a) Xxxxxx
will deliver:
(i) The
certificate or certificates representing the Shares, together with duly executed
stock powers or such other customary instruments of transfer as reasonably
requested by Andes;
(ii) The
instruments representing the Notes;
(iii) The
instrument representing the Warrant;
(iv) The IP
Transfer Agreement executed by Xxxxxx; and
(v) The
Xxxxxx Release, executed by each of the Xxxxxx Parties; (each of the deliveries
under Section 1.6(a), the “Xxxxxx Closing
Deliveries”); and
(b) Andes
will deliver:
(i) The IP
Transfer Agreement executed by Andes, PCT International and PCTY;
and
(ii) The Andes
Release, executed by each of the Andes Parties and by each director, stockholder
and subsidiary of Andes (other than Xxxxxx); (each of the deliveries under
Section 1.6(b), the “Andes Closing
Deliveries”).
1.7. Subsequent
Adjustments. If, at any time or from time to time, during the
two year period beginning on the Closing Date (the “Adjustment Period”),
directly or indirectly, in one or a series of transactions (a) Andes enters into
a merger or other business combination transaction or sells all or any part of
its business, properties or tangible or intangible assets (including the stock
or assets of any subsidiary) that (i) constitute more than 15% of Andes’ total
assets as set forth in the most recently prepared consolidated balance sheet of
Andes, or (ii) account for more than 15% of Andes’ total revenues as set forth
in the most recently prepared consolidated statement of operations of Andes, or
(iii) constitute a separate line of business or business segment, or (b) Xxxxxxx
sells all or any portion of his Common Stock in connection with a sale of at
least 50% (by vote or value) of the outstanding Common Stock then held by all
stockholders, including by merger or similar transaction, or (c) Andes makes any
distribution to stockholders, declares a dividend or repays any loan or other
amount due to a stockholder that is outstanding on the date of this Agreement
(other than Notes or other amounts due to Xxxxxx as of the Closing Date), then
in each and every such case Andes or Xxxxxxx, as applicable, will pay to Xxxxxx
in immediately available funds, within two business days of the closing of each
such transaction, the lesser of $16 million (less any amount previously paid to
Xxxxxx under this Section 1.7) or 15% of the proceeds (or if such
proceeds are not cash, the cash equivalent thereof) of such transaction (such
payments, the “Adjustments”). Such
Adjustments shall be paid for (a) any transactions closed within the Adjustment
Period and (b) any transactions that are not closed within the Adjustment Period
if Andes or Xxxxxxx has not acted in good faith or has purposely manipulated or
delayed closing such transactions for a purpose (among others) of avoiding this
Section 1.7.
2. Representations and
Warranties of the Xxxxxx Parties. The Xxxxxx Parties hereby
jointly and severally represent and warrant to the Andes Parties:
2.1. Authority,
Organization.
(a) Each of
the Xxxxxx Parties is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization;
(b) Each of
the Xxxxxx Parties has all requisite power and authority to execute and deliver
this Agreement and consummate the transactions contemplated by this
Agreement. The execution and delivery by each of the Xxxxxx Parties
of this Agreement and the consummation by each of the Xxxxxx Parties of the
transactions contemplated by this Agreement have been duly authorized by all
necessary action of the applicable Xxxxxx Party;
(c) This
Agreement has been duly and validly executed and delivered by each of the Xxxxxx
Parties and constitutes a valid and binding agreement of each of the Xxxxxx
Parties, enforceable against each of the Xxxxxx Parties in accordance with its
terms; and
(d) The
execution and delivery of this Agreement by the Xxxxxx Parties does not, and the
consummation of the transactions contemplated by this Agreement will not,
(i) violate or conflict with the organizational documents or any material
agreement of any of the Xxxxxx Parties or (ii) violate any law, regulation,
order, judgment or decree of any Governmental Entity (as defined below)
applicable to any of the Xxxxxx Parties.
2.2. Title. Xxxxxx
has, and upon the consummation of the transactions contemplated by this
Agreement, Xxxxxx will transfer to Andes, good and valid title to the Shares,
free and clear of any Encumbrances (except as set forth in the Bylaws and the
Investor Rights Agreement). The Xxxxxx Parties, as applicable, have
sole ownership of the Notes and the Warrant, and each of the Notes and the
Warrant is held and since issuance has been held continuously by the original
holder thereof. Xxxxxx has sole ownership of the registered Z-Wire
Intellectual Property and the right to transfer same to Andes in accordance with
this Agreement and the IP Transfer Agreement. The registered Z-Wire
Intellectual Property is in good standing and all necessary fees have been paid
to maintain U.S. Patent No. 7,084,343 and U.S. Trademark Application Serial No.
78/658,023 for “Z-Wire”.
2.3. Consents. Except for the Regulatory
Approvals (as defined in Section 4.1), none of the Xxxxxx Parties is required to
obtain any permit, authorization, consent or approval of or by, or make any
notification to or filing with, (i) any multinational or supranational, federal,
provincial, state or other government or governmental body, (ii) any division or
authority of any government, governmental body or private body exercising any
statutory, regulatory, expropriation or taxing authority under the authority of
any government or governmental body covered under clause (i), (iii) any
domestic, foreign or international judicial, or administrative court or
arbitrator acting under the authority of any entity under clause (i) or (ii)
(each entity described under clause (i), (ii) and (iii), a “Governmental
Entity”) or (iv) any other
person or entity, in each case, in connection with the execution, delivery and
performance by any of the Xxxxxx Parties of this Agreement or the consummation
by the Xxxxxx Parties of the transactions contemplated by this
Agreement.
2.4. No
Litigation.
(a) Except
the Final Judgment (as defined below), there is no action, suit, proceeding at
law or in equity by any person, or any arbitration or any administrative or
other proceeding by or before any Governmental Entity, pending or, to the
knowledge of any Xxxxxx Party, threatened against any of the Xxxxxx Parties (i)
which would prohibit or materially delay or impair the consummation of the
transactions contemplated by this Agreement, or (ii) to the knowledge of any
Xxxxxx Party, that involves any of the Z-Wire Intellectual
Property.
(b) There is
no action, suit, proceeding at law or in equity, arbitration, or any other
proceeding filed, initiated, brought, pending, or otherwise begun in any way
(whether or not service of process is complete, and whether or not the relevant
jurisdiction would consider the action to have been started without service) (i)
by any of the Xxxxxx Parties against any of the Andes Parties, or their current
and former directors, officers, employees, or agents, or (ii) to the knowledge
of any Xxxxxx Party, that involves any of the Z-Wire Intellectual
Property.
3. Representations and
Warranties of the Andes Parties. The Andes Parties hereby
jointly and severally represent and warrant to the Xxxxxx Parties:
3.1. Authority,
Organization.
(a) Each of
the Andes Parties is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization;
(b) Each of
the Andes Parties has all requisite power and authority to execute and deliver
this Agreement and consummate the transactions contemplated by this
Agreement. The execution and delivery by each of the Andes Parties of
this Agreement and the consummation by each of the Andes Parties of the
transactions contemplated by this Agreement have been duly authorized by all
necessary action of the applicable Andes Party;
(c) This
Agreement has been duly and validly executed and delivered by each of the Andes
Parties, and constitutes a valid and binding agreement of each of the Andes
Parties, enforceable against each of the Andes Parties, in accordance with its
terms;
(d) The
execution and delivery of this Agreement by the Andes Parties does not, and the
consummation of the transactions contemplated by this Agreement will not,
(i) violate or conflict with the organizational documents or any material
agreement of the Andes Parties or (ii) violate any law, regulation, order,
judgment or decree of any Governmental Entity applicable to the Andes Parties;
and
(e) All of
the directors, stockholders and subsidiaries of Andes are listed as signatories
on the Andes Release (other than Xxxxxx).
3.2. Consents. Except for the Regulatory
Approvals, none of the Andes Parties is required to obtain any permit,
authorization, consent or approval of or by, or make any notification to or
filing with, any Governmental Entity or any other person or entity, in each
case, in connection with the execution, delivery and performance by any of the
Andes Parties of this Agreement or the consummation by the Andes Parties of the
transactions contemplated by this Agreement.
3.3. No
Litigation.
(a) There is
no action, suit, proceeding at law or in equity by any person, or any
arbitration or any administrative or other proceeding by or before any
Governmental Entity, pending or, to the knowledge of any Andes Party, threatened
against any of the Andes Parties which would prohibit or materially delay or
impair the consummation of the transactions contemplated by this
Agreement.
(b) There is
no action, suit, proceeding at law or in equity, arbitration, or any other
proceeding filed, initiated, brought, pending, or otherwise begun in any way
(whether or not service of process is complete, and whether or not the relevant
jurisdiction would consider the action to have been started without service) by
any of the Andes Parties against any of the Xxxxxx Parties, or their current and
former directors, officers, employees, or agents.
4. Certain
Covenants.
4.1. Necessary
Filings.
(a) Subject
to the terms and conditions of this Agreement, the Xxxxxx Parties and the Andes
Parties shall, and, where applicable, shall cause their respective affiliates
to, perform all of the obligations required or desirable to be performed by such
parties, cooperate in connection therewith, and do all such other acts and
things as may be necessary or desirable in order to consummate, as soon as
reasonably practicable, the transactions contemplated by this
Agreement. Without limiting the generality of the foregoing, each of
Xxxxxx and Andes shall, and, where appropriate shall cause their respective
subsidiaries to, apply for and use commercially reasonable efforts to promptly
obtain all regulatory approvals (including, but not limited to, any approval by
the United States Department of Justice (the “DOJ”) as required by
the proposed final judgment filed on December 6, 2007 in U.S. v. CommScope, Inc. and Xxxxxx
Corporation (D.C. District Ct. 2007) (No. 07-2200) (the “Final Judgment”) set
forth on Schedule 4.1 hereto (the “Regulatory
Approvals”)).
(b) If any of
the Xxxxxx Parties or Andes Parties receives a request for information or
documentary material from any Governmental Entity with respect to any of the
transactions contemplated herein, then such party shall make, or cause to be
made, as promptly as practicable (but in the case of any such request under
Section VI of the Final Judgment, no later than the period provided for under
that Section VI) an appropriate response in compliance with such
request. In addition, subject to applicable law, each of Xxxxxx and
Andes will keep the other apprised of the status of any such meetings,
discussions, or communications with, and any inquiries or requests for
additional information from any Governmental Entity.
4.2. Further
Assurances. The Xxxxxx Parties and the Andes Parties each
agree to cooperate with each other, and at the request of the other, to execute
and deliver any further instruments or documents and to take all such further
action, including, without limitation, causing their respective subsidiaries to
take such actions, as the other may reasonably request, in order to evidence or
effectuate the consummation of the transactions contemplated by this Agreement
and to otherwise carry out the intent of the parties hereunder.
4.3. No
Solicitation.
(a) The
Xxxxxx Parties covenant that during the Adjustment Period, each of the Xxxxxx
Parties shall not, and they shall cause their respective affiliates not to,
directly or indirectly, solicit the employment of or hire any person who at the
time of such solicitation or hiring or who within one year prior thereto, is or
was employed by any of the Andes Parties, on a full or part-time basis; provided
however, that the Xxxxxx Parties may engage in general solicitations for, and
hire, employees through public advertising of employment opportunities not
specifically targeted or directed at employees of the Andes
Parties.
(b) The Andes
Parties covenant that during the Adjustment Period, each of the Andes Parties
shall not, and they shall cause their respective affiliates not to, directly or
indirectly, solicit the employment of or hire any person who at the time of such
solicitation or hiring or who within one year prior thereto, is or was employed
by any of the Xxxxxx Parties, on a full or part-time basis; provided however,
that the Andes Parties may engage in general solicitations for, and hire,
employees through public advertising of employment opportunities not
specifically targeted or directed at employees of the Xxxxxx
Parties.
4.4. To the
extent permitted by law, on and after the Closing Date, none of the Xxxxxx
Parties (including Xxxxxx, as assignor of the Z-Wire Intellectual Property)
shall directly or indirectly challenge the validity of any of the Z-Wire
Intellectual Property.
4.5. None of
the Xxxxxx Parties shall treat the transfer of the Xxxxxx Note and the Xxxxxx
Mauritius Note pursuant to Section 1.2, for federal or state income tax
reporting purposes, as giving rise to a bad debt deduction but instead shall,
except as otherwise required by law, treat such transfer as a purchase price
adjustment.
5. Closing
Conditions.
5.1. Conditions to Each Party’s
Obligation to Effect the Closing. The obligation of each of
the parties under this Agreement to consummate the transactions contemplated by
this Agreement is subject to the satisfaction of the following conditions as of
the Closing Date:
(a) All
Regulatory Approvals (except for that required by the DOJ, which is covered by
Section 5.1(b)) shall have been obtained or, in the case of waiting or
suspensory periods, have expired or been terminated;
(b) Written
notice from the DOJ to CommScope that the DOJ does not object to the
transactions contemplated by this Agreement shall have been obtained as
prescribed in Section VI.C. of the Final Judgment; and
(c) No
Governmental Entity has enacted, issued, promulgated, enforced, made, entered,
issued or applied any law (whether temporary, preliminary or permanent) that
makes this Agreement illegal or otherwise directly or indirectly enjoins,
restrains or otherwise prohibits consummation of this Agreement.
5.2. Conditions Applicable to the
Xxxxxx Parties. The obligation of the Xxxxxx Parties under
this Agreement to consummate the transactions contemplated by this Agreement is
subject to the satisfaction (or waiver by Xxxxxx) of the following conditions as
of the Closing Date:
(a) Accuracy of the
Representations and Warranties. The representations and
warranties of the Andes Parties as set forth in Article 3 hereof shall be true
and correct in all material respects on the Closing Date as though made on the
Closing Date; and the Andes Parties shall have delivered to Xxxxxx a certificate
to such effect, dated the Closing Date, signed by an authorized officer of each
of the Andes Parties; and
(b) Andes Closing
Deliveries. Andes shall have delivered to Xxxxxx the Andes
Closing Deliveries.
5.3. Conditions Applicable to the
Andes Parties. The obligation of the Andes Parties under this
Agreement to consummate the transactions contemplated by this Agreement is
subject to the satisfaction (or waiver by Andes) of the following conditions as
of the Closing Date:
(a) Accuracy of the
Representations and Warranties. The representations and
warranties of the Xxxxxx Parties as set forth in Article 2 hereof shall be true
and correct in all material respects on the Closing Date as though made on the
Closing Date; and the Xxxxxx Parties shall have delivered to Andes a certificate
to such effect, dated the Closing Date, signed by an authorized officer of each
of the Xxxxxx Parties; and
(b) Xxxxxx Closing
Deliveries. Xxxxxx shall have delivered to Andes the Xxxxxx
Closing Deliveries.
6. Termination.
6.1. Termination by Either
Party. This Agreement may be terminated prior to Closing by
either Xxxxxx or Andes if the Closing has not occurred prior to June 1, 2008;
provided that the right to terminate this Agreement pursuant to this Section 6.1
shall not be available to any party who is in material breach of this
Agreement.
6.2. Termination because of DOJ
Objection. This Agreement may be terminated prior to Closing
by either Xxxxxx or Andes if CommScope receives written notice from the DOJ that
the DOJ objects to the transactions contemplated by this Agreement, as
prescribed in Section VI.C. of the Final Judgment.
6.3. Termination by
Xxxxxx. This Agreement may be terminated by Xxxxxx if there
shall have been a breach of any representation, warranty, covenant or agreement
contained in this Agreement on the part of the Andes Parties or if any such
representation or warranty shall have become untrue or inaccurate, such that (i)
the conditions set forth in Section 5.2 would not be satisfied and (ii) such
breach or inaccuracy is not capable of being cured or, if reasonably capable of
being cured, shall not have been cured prior to the 30 days following notice of
such breach or inaccuracy; provided, however, that no Xxxxxx Party is then in
breach of any of its representations, warranties, covenants or agreements
contained in this Agreement such that the conditions set forth in Section 5.3
would not be satisfied.
6.4. Termination by
Andes. This Agreement may be terminated by Andes if there
shall have been a breach of any representation, warranty, covenant or agreement
contained in this Agreement on the part of the Xxxxxx Parties or if any such
representation or warranty shall have become untrue or inaccurate, such that (i)
the conditions set forth in Section 5.3 would not be satisfied and (ii) such
breach or inaccuracy is not capable of being cured or, if reasonably capable of
being cured, shall not have been cured prior to the 30 days following notice of
such breach or inaccuracy; provided, however, that no Andes Party is then in
breach of any of its representations, warranties, covenants or agreements
contained in this Agreement such that the conditions set forth in Section 5.2
would not be satisfied.
6.5. Effect of
Termination. In the event that this Agreement shall be
terminated pursuant to this Article 6, all further obligations of the parties
under this Agreement (other than Sections 7.6, 7.7, 7.8 and 7.9) shall be
terminated without further liability of any such party to the other, provided
that nothing herein shall relieve any such party from liability for its breach
of this Agreement prior to the termination of this Agreement.
7. Miscellaneous.
7.1. Notices. Any
notice or other communication required or permitted hereunder shall be in
writing and shall be delivered personally, sent by facsimile transmission or
sent by certified, registered or express mail, postage prepaid. Any
such notice shall be deemed given when so delivered personally, or sent by
facsimile transmission or, if mailed, five days after the date of deposit in the
United States mails, as follows:
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(i)
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if
to the Xxxxxx Parties, to:
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CommScope,
Inc.
0000
XxxxXxxxx Xxxxx, XX
X.X. Xxx
000
Xxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: General
Counsel
Facsimile: (000)
000-0000
with a
copy to (which shall not constitute notice):
Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx
Xxxx Xxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxx
Xxxxxxx
Facsimile: (000)
000-0000
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(ii)
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if
to the Andes Parties to:
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Andes
Industries, Inc.
0000 Xxxx
Xxxxxxx Xxxxxxxxx
Xxxxxxx,
XX 00000
Attention: Xxxxxx
Xxxxxxx
Facsimile: (000)
000-0000
with a
copy to (which shall not constitute notice):
Squire,
Xxxxxxx & Xxxxxxx L.L.P.
Two
Renaissance Square
00 Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxx 00000
Attention: Xxxxxx
X. Xxxxx
Facsimile: (000)
000-0000
Any party
may by notice given in accordance with this Section to the other party designate
another address or person for receipt of notices hereunder.
7.2. Entire
Agreement. This Agreement, along with the Schedules and
Exhibits hereto and the Xxxxxx Closing Deliveries and Andes Closing Deliveries,
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and supersede all prior agreements, written or oral, with
respect thereto.
7.3. Modification and
Waiver. No amendment, modification or alteration of the terms
or provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by all of the parties hereto. No waiver of
any of the provisions of this Agreement shall be deemed to or shall constitute a
waiver of any other provision hereof (whether or not similar). No
delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof.
7.4. Binding Effect; No
Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and legal
representatives. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by the parties. Notwithstanding this provision, Xxxxxx and
Andes may each assign its respective rights, except the rights under Section
4.3, to an entity that (a) purchases it, or (b) purchases substantially all of
its assets related to the Z-Wire Intellectual Property.
7.5. No Third Party
Rights. Nothing in this Agreement shall create or be deemed to
create any third-party beneficiary rights to any person other than the parties
hereto, except for the third-party beneficiaries of the Xxxxxx Release and the
Andes Release.
7.6. Expenses. Each
of the parties shall bear its own expenses in connection with the transactions
specified herein.
7.7. Governing
Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York without regard to provisions
concerning conflict of laws principles that would require the application of the
law of another jurisdiction.
7.8. Jurisdiction. Each
of parties hereto (i) consents to submit itself to the personal jurisdiction of
Supreme Court of State of New York or any court of the United States, each
located in the County of New York, New York in the event any dispute arises out
of or relates to this Agreement, (ii) agrees that it shall not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from
any such court, (iii) waives and agrees not to plead or claim in any such court
that any such legal action or proceeding brought in any such court has been
brought in an inconvenient forum and (iv) agrees that it shall not bring any
action arising out of or relating to this Agreement in any other court other
than Supreme Court of State of New York or any court of the United States, each
located in the County of New York, New York. Each of the parties
hereto hereby agree that service of process, summons, notice or document by U.S.
registered mail to their respective address set forth herein shall be effective
service of process for any suit or proceeding in connection with this
Agreement.
7.9. WAIVER OF JURY
TRIAL. EACH OF THE PARTIES WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
7.10. Counterparts. This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.
7.11. Headings. The
headings in this Agreement are for reference only, and shall not affect the
interpretation of this Agreement.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
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COMMSCOPE,
INC.
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By:
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/s/ Xxxxx X. Xxxxxxx | |
| Name: Xxxxx X. Xxxxxxx | |||
| Title: Chairman of the Board and Chief Executive Officer | |||
|
XXXXXX
CORPORATION
|
|||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | |||
| Title: Executive Vice President | |||
|
XXXXXX
CORPORATION MAURITIUS
|
|||
|
|
By:
|
/s/ Xxx Xxxxxxxx | |
| Name: Xxx Xxxxxxxx | |||
| Title: Director | |||
|
ANDES
INDUSTRIES, INC.
|
|||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | |||
| Title: Chief Executive Officer | |||
|
PCT
INTERNATIONAL, INC.
|
|||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | |||
| Title: Chief Executive Officer | |||
|
PCT
MAURITIUS HOLDING LIMITED
|
|||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | |||
| Title: Chief Executive Officer | |||
|
XXXXXX
XXXXXXX
|
|||
|
|
/s/ Xxxxxx X. Xxxxxxx | ||
|
PCT
BROADBAND TELECOMMUNICATIONS (YANTAI) CO. LTD.
|
|||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | |||
| Title: Chief Executive Officer | |||
