ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this Agreement) is made and entered into as of this 26^th day of July, 2005, by and between Wireless Holdings International, Inc., an international business corporation organized under the laws of the British Virgin Islands (Buyer), and REMEC, Inc., a California corporation (Seller).

RECITALS

A. Seller, as part of its overall business of wireless telecommunications equipment design, manufacturing and sales, carries on the businesses of designing and manufacturing high frequency point-to-point outdoor radios and transceivers (the Business). Seller operates the Business through its unincorporated ODU/TRX business unit and its wholly owned subsidiary REMEC Philippines. Seller desires to sell, or cause the sale of, certain of the assets and transfer certain of the liabilities of the Business to Buyer on the terms and conditions set forth in this Agreement.

B. Buyer desires to purchase such assets and liabilities from Seller and its Affiliates on the terms and conditions set forth in this Agreement.

C. Seller and Buyer further desire to contemporaneously enter into the Ancillary Agreements, the Escrow Agreement, the Philippine Sublease and the Poway Sublease.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth below, and subject to the terms and conditions set forth herein, the parties agree as follows:

ARTICLE 1

DEFINITIONS

As used in this Agreement, the following terms shall have the meanings indicated below:

Accounts Payable shall mean all current (not past due terms) payment obligations under Assumed Contracts and determined in accordance with the procedures set forth at Section 4.6(a).

Affiliate shall mean, in respect of any specified Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with, such specified Person.

Agreement shall have the meaning set forth in the Preamble.

Agreement Related to Baan License Agreement shall have the meaning set forth in Section 2.7(a)(vii).

Ancillary Agreements shall mean the Information Technology Transition Services Agreement, the Trademark License Agreement, the Know How and Trade Secret License Agreement and the Agreement Related to Baan License Agreement.

Assets shall have the meaning set forth in Section 2.1.

Assignment and Assumption Agreement shall have the meaning set forth in Section 2.7(a)(iii).

Assumed Contracts shall have the meaning set forth in Section 2.1(c).

Assumed Employee Liabilities shall have the meaning set forth at Section 2.3(a)(iii).

Assumed Liabilities shall have the meaning set forth in Section 2.3(a).

Axxcelera Contract shall mean that certain Manufacturing Agreement between Seller and Axxcelera Broadband Wireless, Inc. dated May 10, 2004.

Bill of Sale shall have the meaning set forth in Section 2.7(a)(i).

Bulk Sales Laws shall have the meaning set forth in Section 2.9.

Business shall have the meaning set forth in the Recitals.

Business Day means any day, other than Saturday or Sunday or days in which banks in California are entitled to close.

Business Material Adverse Effect shall mean any change or effect that is, individually or in the aggregate, materially adverse to the business, operations, assets, condition (financial or otherwise) or results of operations of the Business other than any change or effect (a) relating to the economy of the United States of America in general, (b) relating to the industry in which the Business operates in general and not specifically relating to the Business, (c) arising out of the announcement or pendency of the transactions contemplated by this Agreement, (d) arising out of compliance by Seller with the terms of this Agreement, (e) arising out of any action taken or announced by Buyer or taken or announced by Seller at the request or direction of Buyer, or any inaction or failure to act by Seller at the request or direction of Buyer, (f) arising out of any failure of the Business to achieve projected revenue or operating results, (g) resulting from any outbreak or escalation of hostilities or the occurrence of any terrorist acts, in

each case involving or in the United States of America or any other country in which the Business operates or has facilities (except as directed specifically at the Business) or (h) relating to any adverse change or effect arising from any change in GAAP. Notwithstanding the foregoing, the parties acknowledge and agree that there shall be deemed to have been a Business Material Adverse Effect in the event that there has been any material adverse change in the business relationship between Seller and any of the parties listed on Exhibit 7.2(b)(i), regardless of the reason therefor, except where such material adverse change results from normal fluctuations in the demand by any such customer for the Sellers products during the six month period preceding the date of execution of this Agreement.

Buyer shall have the meaning set forth in the Preamble.

Buyer Indemnitees shall have the meaning set forth in Section 8.2.

Buyer Losses shall have the meaning set forth in Section 8.2.

Buyer Material Adverse Effect shall mean any change or effect that is, individually or in the aggregate, materially adverse to the business, assets, financial condition or results of operations of Buyer other than any change or effect (a) relating to the economy of the United States of America in general, (b) relating to the industry in which Buyer operates in general and not specifically relating to Buyer, (c) arising out of the announcement or pendency of the transactions contemplated by this Agreement, (d) arising out of compliance by Buyer with the terms of this Agreement or (e) arising out of any action taken or announced by Buyer at the request or direction of Seller, or any inaction or failure to act by Buyer at the request or direction of Seller.

Closing shall have the meaning set forth in Section 2.6.

Closing Balance Sheet shall have the meaning set forth in Section 3.3.

Closing Date shall have the meaning set forth in Section 2.6.

Code shall mean the Internal Revenue Code of 1986, as amended.

Continuing Employees shall have the meaning set forth in Section 3.1(b).

Contracts shall mean any agreement, contract, instrument, obligation, promise or undertaking (whether written or oral) that is legally binding and to which Seller or REMEC Philippines is a party or is bound and that relates solely to the Business.

Disclosure Schedules shall mean the schedules containing lists required by, and disclosing exceptions or qualifications to, Sellers representations and warranties, which are being delivered by Seller to Buyer concurrently with the execution and delivery of this Agreement, as such may be amended by Seller and accepted by Buyer pursuant to Section 2.7(a)(xvii).

Effective Time shall be 11:59 a.m. Pacific time on the Closing Date.

Encumbrance means any mortgage, deed of trust, lien, pledge, easement, hypothecation, assignment or security interest.

ERISA shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time, and the rules and regulations issued pursuant to that Act.

Escrow Agent shall have the meaning set forth in Section 2.5.

Escrow Agreement shall have the meaning set forth in Section 2.5.

Excluded Assets shall have the meaning set forth in Section 2.2.

FWA/EMS Contracts shall mean the Axxcelera Contract; the General Contract between Elrisa Electronic Systems and REMEC Wireless Systems, Inc. dated July 6, 2004 and any orders placed pursuant thereto; all purchase orders placed by Microsource, Inc. with Seller; and all purchase orders placed by Cougar Components with Seller.

GAAP shall mean accounting principles generally accepted in the United States of America.

GDC Contract shall the mean the Supply Agreement between Seller and General DataComm dated April 13, 2005, as amended April 13, 2005.

GDC Deposit shall have the meaning set forth in Section 2.1(f).

Governing Documents shall mean (a) the articles or certificate of incorporation and the bylaws of a corporation; (b) any charter or similar document adopted or filed in connection with the creation, formation or organization of any other entity; and (c) any amendment or supplement to any of the foregoing.

Governmental Authorizations shall mean any consent, license, registration or permit issued, granted, given or otherwise made available by or under the authority of any Governmental Entity or pursuant to any Legal Requirement.

Governmental Entity shall mean any government or any agency, bureau, board, commission, court, department, official, political subdivision, tribunal or other instrumentality of any government, whether federal, state or local, domestic or foreign.

Holdback Amount shall have the meaning set forth in Section 2.5.

Indemnified Party shall have the meaning set forth in Section 8.4.

Indemnifying Party shall have the meaning set forth in Section 8.4.

Information Technology Transition Services Agreement shall have the meaning set forth in Section 2.7(a)(v).

Intellectual Property means all registered and unregistered intellectual property rights, including, without limitation, all of the following items along with all income, royalties, damages, equitable relief and payments due or payable prior to or at the Closing or thereafter (including, without limitation, damages, equitable relief and payments for past, present or future infringements or misappropriations thereof, the right to sue and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world): (a) patents, patent applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice) and any reissue, continuation, continuation-in-part, division, revision, extension or reexamination thereof; (b) trademarks, service marks, industrial designs, trade dress, internet domain names and web sites, logos, topographies, trade names and corporate names, together with all goodwill associated therewith; registered and unregistered copyrights, copyrightable works and mask works; (c) all registrations, applications and renewals for any of the foregoing; (d) trade secrets and confidential information (including, without limitation, ideas, formulae, compositions, know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, financial, business and marketing plans, and customer and supplier lists and related information); (e) computer software and software licenses (including, without limitation, data, databases and related documentation held through such software) owned and/or used by a party other than commercially available off-the-shelf software with a license fee of less than $10,000 in the aggregate for all copies of a particular software application; (f) licenses or other agreements to or from third parties regarding the foregoing; and (g) all copies and tangible embodiments of the foregoing (in whatever form or medium).

Inventory shall mean all inventory of the Business (including raw materials, supplies, work-in-progress, finished goods and other materials included in the inventory of the Business) and determined in accordance with the procedures set forth at Section 4.6(b).

IRS shall mean the Internal Revenue Service.

Know How and Trade Secret License Agreement has the meaning set forth in Section 2.7(a)(x).

Knowledge or other similar terms evidencing awareness (a) on the part of Seller and REMEC Philippines means the actual knowledge of Thomas H. Waechter, Winston Hickman, Tim Jones, Marilyn Lim and/or Steve Yasbek, and (b) on the part of Buyer means the actual knowledge of Dave Newman, Domingo Bonifacio, Chuck Bowman or Behzad Moeenziai.

Law or Laws shall mean any constitutional provision, statute, ordinance or other law, rule or regulation of any Governmental Entity.

Legal Requirements shall mean any federal, provincial, state, local, municipal, foreign, international, multinational or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute or treaty applicable to the Business.

Liability shall mean with respect to any Person, any liability or obligation of such Person, whether absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, executory, determined, determinable or otherwise, and whether or not the same is required to be accrued on the financial statements of such Person.

Home        Intelligence        Services        Subscriptions        News        About Us

Contact Us       Terms of Use       Resend Documents       Shopping Cart

Copyright © 2008 The Consus Group LLC