EXCHANGE AGREEMENT (Unrestricted Notes)
(Unrestricted Notes)
___________________ (including
any other persons or entities exchanging Existing Notes hereunder for whom the
undersigned Holder holds contractual and investment authority, the “Holder”) enters into this
Exchange Agreement (the “Agreement”) with Powerwave
Technologies, Inc. (the “Company”) on March __, 2010
whereby the Holder will exchange (the “Exchange”) the Company’s
1.875% Convertible Subordinated Notes due 2024 (the “Existing Notes”) for the
Company’s new 1.875 % Convertible Senior Subordinated Notes due 2024 (the “New Notes”) that will be
issued pursuant to the provisions of an Indenture, dated as of
March __, 2010, among the Company and Deutsche Bank Trust Company Americas, as
Trustee (the “Trustee”),
as it may be supplemented or amended from time to time (the “Indenture”).
On and subject to the
terms hereof, the parties hereto agree as follows:
Article
I: Exchange of the Existing Notes for New Notes
At the Closing (as
defined herein), the Holder hereby agrees to exchange and deliver to the Company
the following Existing Notes, and in exchange therefor the
Company hereby agrees to issue to the Holder the principal amount of New Notes
described below:
Principal Amount of Existing Notes to be Exchanged:
$
(the “Exchanged
Notes”).
Principal amount of New Notes to be issued in Exchange: $
(the “Holder’s
New Notes”).
The closing of the
Exchange (the “Closing”)
shall occur on a date (the “Closing Date”) no later than
three business days after the date of this Agreement. At the Closing,
(a) the Holder shall deliver or cause to be delivered to the Company all
right, title and interest in and to the Exchanged Notes free and clear of any
mortgage, lien, pledge, charge, security interest, encumbrance, title retention
agreement, option, equity or other adverse claim thereto (collectively, “Liens”), together with any
documents of conveyance or transfer that the Company may deem necessary or
desirable to transfer to and confirm in the Company all right, title and
interest in and to the Exchanged Notes free and clear of any Liens, and (b) the
Company shall issue to the Holder the Holder's New Notes; provided,
however, that the parties acknowledge that the issuance of the Holder's New
Notes to the Holder may be delayed due to procedures and mechanics within the
system of the Depository Trust Company and that such delay will not be a default
under this Agreement so long as (i) the Company is using its best efforts to
effect the issuance of one or more global notes representing the New Notes, (ii)
such delay is no longer than three business days, and (iii) interest shall
accrue on such New Notes in accordance with the Indenture. Simultaneously
with or after the Closing, the Company may issue New Notes to one or more other
holders of outstanding Existing Notes or to other investors, subject to the
terms of the Indenture
Article
II: Covenants, Representations and Warranties of the
Holder
The Holder hereby
covenants as follows, and makes the following representations and warranties,
each of which is and shall be true and correct on the date hereof and at the
Closing, to the Company, Lazard Frères & Co. LLC and Lazard Capital
Markets LLC, and all such covenants, representations and warranties shall
survive the Exchange.
Section
2.1 Power and
Authorization. The Holder is duly organized, validly
existing and in good standing, and has the power, authority and capacity to
execute and deliver this Agreement, to perform its obligations hereunder, and to
consummate the Exchange contemplated hereby. If the Holder that is
signatory hereto is executing this Agreement to effect the exchange of Exchanged
Notes beneficially owned by one or
more other
persons or entities (who are thus included in the definition of “Holder”
hereunder), (a) such signatory Holder has all requisite discretionary and
contractual authority to enter into this Agreement on behalf of, and bind, each
such other person or entity that is a beneficial owner of Exchanged Notes, and
(b) Exhibit A hereto
is a true, correct and complete list of (i) the name of each party
delivering (as beneficial owner) Exchanged Notes hereunder, (ii) the
principal amount of such Holder’s Exchanged Notes, and (iii) the principal
amount of Holder’s New Notes to be issued to such Holder in respect of its
Exchanged Notes.
Section
2.2 Valid and
Enforceable Agreement; No Violations.
This Agreement has been duly executed and delivered by the Holder and
constitutes a legal, valid and binding obligation of the Holder, enforceable
against the Holder in accordance with its terms, except that such enforcement
may be subject to (a) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting or relating to enforcement of creditors’ rights
generally, and (b) general principles of equity (the “Enforceability
Exceptions”). This Agreement and consummation of the Exchange will
not violate, conflict with or result in a breach of or default under
(i) the Holder’s organizational documents, (ii) any agreement or
instrument to which the Holder is a party or by which the Holder or any of its
assets are bound, or (iii) any laws, regulations or governmental or
judicial decrees, injunctions or orders applicable to the Holder.
Section
2.3 Title to the Exchanged
Notes. The Holder is the sole legal and beneficial owner of
the Exchanged Notes. The Holder has good, valid and marketable title to
the Exchanged Notes, free and clear of any Liens (other than pledges or security
interests that the Holder may have created in favor of a prime broker under and
in accordance with its prime brokerage agreement with such broker). The
Holder has not, in whole or in part, except as described in the preceding
sentence, (a) assigned, transferred, hypothecated, pledged, exchanged or
otherwise disposed of any of the Exchanged Notes or its rights in the Exchanged
Notes, or (b) given any person or entity any transfer order, power of
attorney or other authority of any nature whatsoever with respect to the
Exchanged Notes. Upon the Holder’s delivery of the Exchanged Notes to the
Company pursuant to the Exchange, the Exchanged Notes shall be free and clear of
all Liens created by the Holder.
Section
2.4 Accredited
Investor. The Holder
is an “accredited investor” within the meaning of Rule 501 of Regulation D
promulgated under the Securities Act of 1933, as amended (the “Securities
Act”).
Section
2.5 Qualified Institutional
Buyer. The Holder is a “qualified
institutional buyer” within the meaning of Rule 144A promulgated under the
Securities Act.
Section
2.6 No Affiliate
Status. The Holder is not, and has not
been during the consecutive three month period preceding the date hereof, an
“affiliate” within the meaning of Rule 144 promulgated under the Securities Act
(an “Affiliate”) of the
Company. To its knowledge, the Holder did not acquire
any of the Exchanged Notes, directly or indirectly, from an Affiliate of the
Company.
Section
2.7 No Additional
Consideration. Except for
the exchange of the Exchanged Notes for the Holder’s New Notes, the Holder has
not paid (and will not pay) any consideration (whether in cash, securities of
the Company or otherwise) in connection with its receipt of the Holder’s New
Notes.
Section
2.8 No Illegal
Transactions. The Holder has not,
directly or indirectly, and no person acting on behalf of or pursuant to any
understanding with the Holder has, engaged in any transactions in the securities
of the Company (including, without limitation, any Short Sales (as defined
below) involving any of the Company’s securities) since the time that such
Holder was first contacted by either the Company, Lazard Frères & Co. LLC or
Lazard Capital Markets LLC or any other person regarding an investment in the
New Notes or the Company. Such Holder covenants that neither it nor any
person acting on its behalf or pursuant to any understanding with such Holder
will engage, directly or indirectly, in any transactions in the securities of
the Company (including Short Sales) prior to the time the transactions
contemplated by this Agreement are publicly disclosed. “Short Sales” include, without
limitation, all “short sales” as defined in Rule 200 of Regulation SHO
promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and all types
of direct and indirect stock pledges, forward sale contracts, options, puts,
calls, short sales, swaps,
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derivatives and
similar arrangements (including on a total return basis), and sales and other
transactions through non-U.S. broker-dealers or foreign regulated
brokers. Solely for purposes of
this Section 2.8, subject to the Holder’s compliance with its obligations
under the U.S. federal securities laws and the Holder’s internal policies,
“Holder” shall not be deemed to include any subsidiaries or affiliates of the
Holder that are effectively walled off by appropriate “Chinese Wall” information
barriers approved by the Holder’s legal or compliance department (and thus have
not been privy to any information concerning the Exchange).
Section
2.9 Adequate Information; No
Reliance.The Holder acknowledges and agrees
that (a) the Holder has been furnished with all materials it considers
relevant to making an investment decision to enter into the Exchange and has had
the opportunity to review the Company’s filings with the Securities and Exchange
Commission (the “SEC”),
including, without limitation, all filings made pursuant to the Exchange Act,
(b) the Holder has had a full opportunity to ask questions of the Company
concerning the Company, its business, operations, financial performance,
financial condition and prospects, and the terms and conditions of the Exchange,
(c) the Holder has had the opportunity to consult with its accounting, tax,
financial and legal advisors to be able to evaluate the risks involved in the
exchange of the Existing Notes pursuant hereto and to make an informed
investment decision with respect to the Exchange and an investment in the New
Notes and the Company, and (d) the Holder is not relying, and has not
relied, upon any statement, advice (whether legal, tax, financial, accounting or
other), representation or warranty made by the Company or any of its affiliates
or representatives including, without limitation, Lazard Frères & Co.
LLC and Lazard Capital Markets LLC, except for (i) the publicly available
filings made by the Company with the SEC under the Exchange Act and
(ii) the representations and warranties made by the Company in this
Agreement.
Section
2.10 No Public
Market.The Holder understands that no public
market exists for the New Notes, and that there is no assurance that a public
market will ever develop for the New Notes.
Article
III: Covenants, Representations and Warranties of the
Company
The Company hereby
covenants as follows, and makes the following representations and warranties,
each of which is and shall be true and correct on the date hereof and at the
Closing, to the Holder, Lazard Frères & Co. LLC and Lazard Capital Markets
LLC, and all such covenants, representations and warranties shall survive the
Exchange.
Section
3.1 Power and
Authorization. The Company is duly incorporated, validly
existing and in good standing under the laws of its state of incorporation, and
has the power, authority and capacity to execute and deliver this Agreement and
the Indenture, to perform its obligations hereunder and thereunder, and to
consummate the Exchange contemplated hereby.
Section
3.2 Valid and
Enforceable Agreement; No Violations.
This Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except that such enforcement
may be subject to the Enforceability Exceptions. At the Closing, the
Indenture, substantially in the form of Exhibit B
hereto, will have been duly executed and delivered by the Company and will
govern the terms of the New Notes, and the Indenture will constitute a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except that such enforcement may be subject to the
Enforceability Exceptions. This Agreement, the Indenture and consummation
of the Exchange will not violate, conflict with or result in a breach of or
default under (a) the charter, bylaws or other organizational documents of
the Company, (b) any agreement or instrument to which the Company is a
party or by which the Company or any of its assets are bound, or (c) any
laws, regulations or governmental or judicial decrees, injunctions or orders
applicable to the Company.
Section
3.3 Validity of the Holder’s New
Notes. The Holder’s New
Notes have been duly authorized by the
Company and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to the Holder pursuant to the
Exchange against delivery of the Exchanged Notes in
3
accordance with the terms of this
Agreement, the Holder’s New Notes will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except that such
enforcement may be subject to the Enforceability Exceptions, and the Holder’s
New Notes will not be subject to any preemptive, participation, rights of first
refusal and other similar rights. Assuming the accuracy of the Holder’s
representations and warranties hereunder, the Holder’s New Notes (a) will
be issued in the Exchange exempt from the registration requirements of the
Securities Act pursuant to Section 4(2) of the Securities Act,
(b) will be free of any restrictions on resale by the Holder pursuant to
Rule 144 promulgated under the Securities Act, and (c) will be issued
in compliance with all applicable state and federal laws concerning the issuance
of the Holder’s New Notes.
Section
3.4 Validity of Underlying
Common Stock. The Holder’s New Notes are
convertible into shares of the Company’s Common Stock, par
value $0.0001 per share (the “Conversion Shares”), in
accordance with the terms of the Indenture. The Conversion Shares have
been duly authorized and reserved by the Company for issuance upon conversion of
the Holder’s New Notes and, when issued upon conversion of the Holder’s New
Notes in accordance with the terms of the Holder’s New Notes and the Indenture,
will be validly issued, fully paid and non-assessable, and the issuance of the
Conversion Shares will not be subject to any preemptive, participation, rights
of first refusal and other similar rights.
Section
3.5 Listing
Approval. On the Closing Date, the Conversion Shares will be
eligible to trade on the NASDAQ Global Select
Market.
Section
3.6 Disclosure. On or before the first business day following the date of this
Agreement, the Company shall issue a publicly available press release or file
with the SEC a Current Report on Form 8-K disclosing the material terms of
the Exchange (to the extent not previously publicly disclosed).
Article
IV: Miscellaneous
Section
4.1 Entire
Agreement. This Agreement and any documents and agreements
executed in connection with the Exchange embody the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof
and supersede all prior and contemporaneous oral or written agreements,
representations, warranties, contracts, correspondence, conversations, memoranda
and understandings between or among the parties or any of their agents,
representatives or affiliates relative to such subject matter, including,
without limitation, any term sheets, emails or draft documents.
Section
4.2 Construction.
References in the singular shall include the plural, and vice versa, unless the
context otherwise requires. References in the masculine shall include the
feminine and neuter, and vice versa, unless the context otherwise
requires. Headings in this Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meanings of the provisions hereof. Neither party, nor its respective counsel,
shall be deemed the drafter of this Agreement for purposes of construing the
provisions of this Agreement, and all language in all parts of this Agreement
shall be construed in accordance with its fair meaning, and not strictly for or
against either party.
Section
4.3 Governing
Law. This Agreement shall in all respects be construed in
accordance with and governed by the substantive laws of the State of
<?xml:namespace prefix = st1 ns =
"urn:schemas-microsoft-com:office:smarttags" />New York, without reference to
its choice of law rules.
Section
4.4 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute
one and the same instrument. Any counterpart or other signature hereon
delivered by facsimile shall be deemed for all purposes as constituting good and
valid execution and delivery of this Agreement by such party.
[Signature Page
Follows]
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IN WITNESS WHEREOF,
each of the parties hereto has caused this Agreement to be executed as of the
date first above written.
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“HOLDER”:
By:
Name:
Title:
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“COMPANY”:
POWERWAVE TECHNOLOGIES, INC:
By:
Name:
Title:
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EXHIBIT A
Exchanging Beneficial Owners
Exchanging Beneficial Owners
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Name of
Beneficial Owner |
Principal Amount of Exchanged Notes
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Principal Amount of Holder’s New Notes
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EXHIBIT B
Indenture
Indenture
