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Asset Purchase Agreement

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Title:

Asset Purchase Agreement

Entities:

Powerwave Technologies Inc.; REMEC, Inc.; Heller Ehrman White & McAuliffe

Date:

2005

Size:

Preview shows 50KB of 221KB total

Price:

$57

ID:

#614462

► Purchase & Sale ► Purchase ► Asset Purchase Agreements
► Technology ► Communications Equipment
► Services ► Legal

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Execution Version

ASSET PURCHASE AGREEMENT

BY AND BETWEEN

POWERWAVE TECHNOLOGIES, INC.

AND

REMEC, INC.

DATED AS OF MARCH 13, 2005

TABLE OF CONTENTS


		Page
ARTICLE I ? DEFINITIONS

Section 1.1.	Definitions	1

ARTICLE II ? SALE AND PURCHASE OF ASSETS

Section 2.1.	Purchased Assets	9
Section 2.2.	Excluded Assets	11

ARTICLE III ? CONSIDERATION

Section 3.1.	Purchase Price	11
Section 3.2.	Escrow Amount	11
Section 3.3.	Post Closing Adjustments to Purchase Price.	11
Section 3.4.	Allocation of Purchase Price	13
Section 3.5.	Assumed Obligations	13
Section 3.6.	Liabilities Not Being Assumed	14
Section 3.7.	Tax Withholding	15

ARTICLE IV ? CONDITIONS TO CLOSING

Section 4.1.	Closing	15
Section 4.2.	Conditions to the Purchasers? Obligations	15
Section 4.3.	Conditions to the Sellers? Obligations	17
Section 4.4.	Conditions to Each Party?s Obligations	18

ARTICLE V ? COVENANTS

Section 5.1.	Affirmative Covenants of the Sellers	19
Section 5.2.	Negative Covenants of the Sellers	20
Section 5.3.	Affirmative Covenants of Purchasers.	21
Section 5.4.	Negative Covenants of Purchasers	21
Section 5.5.	Affirmative Covenants of Purchasers and Sellers.	21

ARTICLE VI ? REPRESENTATIONS AND WARRANTIES OF THE SELLERS

Section 6.1.	Organization and Corporate Power.	22
Section 6.2.	Authorization of Transactions	23
Section 6.3.	Absence of Conflicts	23
Section 6.4.	Capitalization	24
Section 6.5.	SEC Filings; Financial Statements; Disclosure Controls.	24
Section 6.6.	Absence of Undisclosed Liabilities	25
Section 6.7.	Consents and Approvals; No Violations	25
Section 6.8.	Absence of Certain Developments	26
Section 6.9.	Real Property.	27
Section 6.10.	Purchased Assets.	28

TABLE OF CONTENTS

(continued)


		Page
Section 6.11.	Taxes.	28
Section 6.12.	Inventories	30
Section 6.13.	Contracts and Commitments.	30
Section 6.14.	Solvency.	31
Section 6.15.	Proprietary Rights.	32
Section 6.16.	Litigation; Proceedings	33
Section 6.17.	Brokerage	33
Section 6.18.	Fairness Opinion	34
Section 6.19.	Governmental Licenses and Permits	34
Section 6.20.	Employees	34
Section 6.21.	Employee Benefit Plans	34
Section 6.22.	Insurance	35
Section 6.23.	Affiliate Transactions	35
Section 6.24.	Compliance with Laws	35
Section 6.25.	Environmental Matters	35
Section 6.26.	Illegal Payments	36
Section 6.27.	Customers and Suppliers	37
Section 6.28.	Product Warranties and Liabilities	37
Section 6.29.	Entities Engaged in Business	37
Section 6.30.	Proxy Statement/Prospectus; Registration Statement	37
Section 6.31.	Disclosure	37

ARTICLE VII ? REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS

Section 7.1.	Organization and Corporate Power.	38
Section 7.2.	Authorization of Transactions	38
Section 7.3.	Absence of Conflicts	38
Section 7.4.	SEC Filings; Financial Statements; Disclosure Controls.	39
Section 7.5.	Absence of Undisclosed Liabilities	40
Section 7.6.	Consents and Approvals; No Violations	40
Section 7.7.	Capitalization.	40
Section 7.8.	Absence of Certain Developments	41
Section 7.9.	Brokerage	41
Section 7.10.	Proxy Statement/Prospectus; Registration Statement	41
Section 7.11.	Litigation; Proceedings	41
Section 7.12.	Disclosure	41

ARTICLE VIII ? TERMINATION

Section 8.1.	Termination	42
Section 8.2.	Effect of Termination	43
Section 8.3.	Termination Fee.	44

TABLE OF CONTENTS

(continued)


		Page
ARTICLE IX ? INDEMNIFICATION AND RELATED MATTERS
Section 9.1.	Survival	45
Section 9.2.	Indemnification.	45
Section 9.3.	Certain Tax Matters.	49
Section 9.4.	Tax Indemnification	49
Section 9.5.	Treatment of Indemnity Payments	50
Section 9.6.	Cooperation	50
Section 9.7.	Bulk Sales Laws	50
Section 9.8.	Section 338(g) Election	50

ARTICLE X ? ADDITIONAL AGREEMENTS

Section 10.1.	Press Releases and Announcements	50
Section 10.2.	Specific Performance	50
Section 10.3.	Expenses	50
Section 10.4.	No Solicitation by the Seller Parent; Etc.	51
Section 10.5.	Noncompetition, Nonsolicitation, and Confidentiality	53
Section 10.6.	Transition Services Agreements	54
Section 10.7.	Transition Services Agreement	55
Section 10.8.	Financial Statements	55
Section 10.9.	Nasdaq National Stock Market	55
Section 10.10.	Certain Filings; Reasonable Efforts.	55
Section 10.11.	Additions to and Modification of Disclosure Schedule	56
Section 10.12.	Access to Employees	56

ARTICLE XI ? MISCELLANEOUS

Section 11.1.	Amendment and Waiver	57
Section 11.2.	Notices	57
Section 11.3.	Binding Agreement; Assignment	58
Section 11.4.	Severability	58
Section 11.5.	Rules of Construction.	58
Section 11.6.	Entire Agreement	59
Section 11.7.	Counterparts	59
Section 11.8.	Governing Law; Jurisdiction	59
Section 11.9.	Parties in Interest	60
Section 11.10.	Descriptive Headings	60
Section 11.11.	Incorporation of Exhibits and Schedules	60

INDEX OF EXHIBITS
Exhibit A ? Form on Escrow Agreement		A-1
Exhibit B ? Bill of Sale and Assumption Agreement		B-1
Exhibit C ? Form of Opinion of Heller Ehrman		C-1
Exhibit D ? Form of Opinion of Stradling Yocca		D-1

iii

ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT, dated as of March 13, 2005, is made by and between Powerwave Technologies Inc., a Delaware corporation (?Purchaser Parent?) and any direct or indirect subsidiary of Purchaser Parent to which Purchaser Parent may assign, in whole or in part, its rights and obligations hereunder pursuant to Section 11.3 below (each, a ?Purchaser Subsidiary? and, together with the Purchaser Parent, the ?Purchasers?), on the one hand, and REMEC, Inc., a California corporation (the ?Seller Parent?). Certain capitalized terms used herein are defined in Article I below.

RECITALS

WHEREAS, Seller Parent and the Seller Subsidiaries (collectively, the ?Sellers?) are in the business of designing, manufacturing and selling proprietary radio frequency power amplifiers, filters, tower mounted amplifiers and network enhancement products and services (the ?Business?); and

WHEREAS, subject to the terms and conditions of this Agreement, the Purchasers desire to purchase and the Sellers desire to sell and transfer to Purchasers, substantially all of the assets, operations and business that constitute and which are related to and used in connection with the Business and in conjunction therewith, Purchasers desire to assume certain obligations and liabilities associated with the assets so purchased.

AGREEMENT

NOW, THEREFORE, in consideration of the premises and of the mutual representations, warranties, and covenants which are to be made and performed by the respective Parties, the Parties hereby agree as follows:

ARTICLE I ? DEFINITIONS

Section 1.1. Definitions. When used in this Agreement, the following terms have the meanings set forth below:

?Affiliate? of any particular Person means any other Person controlling, controlled by, or under common control with such particular Person, where ?control? means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract, or otherwise.

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