EXHIBIT 2.2
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
SELLER: Hewlett-Packard Company, a
Delaware corporation
BUYER: Powerwave Technologies, Inc.,
a Delaware corporation
DATED: August 31, 1998
DEFINED TERMS
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Execution Date: August 31, 1998
Seller: Hewlett-Packard Company,
a Delaware corporation
Seller's Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇: 20BQ
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Buyer: Powerwave Technologies, Inc.,
a Delaware corporation
Buyer's Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Seller's Counsel: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇: 20BQ
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Buyer's Counsel: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Property: That certain real property located in the City of
Folsom, County of Sacramento, State of California,
commonly known as ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, as legally
described on Exhibit A attached hereto, together with a
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commercial building containing approximately
____________ (_____) square feet and all other
improvements to such real property, and all of Seller's
right, title and interest in and to all rights,
privileges, easements and appurtenances benefiting such
property
Purchase Price: The amount set forth in the Purchase Price Allocation,
attached as Exhibit E to the Asset Purchase Agreement
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(as defined in Section 2 below)
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Closing Date: Concurrent with the "Closing" as defined in the Asset
Purchase Agreement
Title Company: First American Title Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Escrow Holder: First American Title Insurance Company
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▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
This Purchase and Sale Agreement and Joint Escrow Instructions
("Agreement") is made and entered into as of the Execution Date by and between
Seller and Buyer.
In consideration of the mutual covenants and agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Buyer agree as follows:
1. Purchase and Sale. Seller hereby agrees to sell the Property to
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Buyer, and Buyer hereby agrees to purchase the Property from Seller, on the
terms and conditions set forth in this Agreement.
2. Asset Purchase Agreement. Concurrently with the execution of this
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Agreement, Seller and Buyer shall enter into an Asset Purchase Agreement (the
"Asset Purchase Agreement"), pursuant to which, at the Closing (as defined
below), Seller shall agree to sell to Buyer all of Seller's right, title and
interest in and to the Purchased Assets described therein.
3. Payment of Purchase Price. The Purchase Price for the Property shall
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be paid by Buyer to Seller in cash at the Closing by wire transfer of
immediately available funds to an account designated by Seller.
4. Escrow.
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(a) Opening of Escrow. For the purposes of this Agreement, the escrow
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("Escrow") shall be deemed opened ("Opening of Escrow") on the date that Escrow
Holder receives a copy of this Agreement fully executed by Buyer and Seller.
Buyer and Seller shall use their best efforts to cause the Opening of Escrow to
occur on or before three (3) business days after the Execution Date. Escrow
Holder shall promptly notify Buyer and Seller in writing of the date of the
Opening of Escrow. Buyer and Seller agree to execute, deliver and be bound by
any reasonable or customary supplemental escrow instructions or other
instruments reasonably required by Escrow Holder to consummate the transaction
contemplated by this Agreement; provided, however, that no such instruments
shall be inconsistent or in conflict with, amend or supersede any portion of
this Agreement. If there is any conflict or inconsistency between the terms of
such instruments and the terms of this Agreement, then the terms of this
Agreement shall control.
(b) Closing. For purposes of this Agreement, the "Closing" shall be
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the date that the Deed (as defined below) is recorded pursuant to applicable law
in the county in which the Property is located. Unless changed in writing by
Buyer and Seller, the Closing shall occur on the Closing Date, subject to
Sections 7 and 8 of this Agreement.
5. Seller's Delivery of Property Documents. Seller shall deliver to Buyer
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within two (2) business days after the Opening of Escrow the documents and other
materials relating to the Property set forth below (collectively, the "Property
Documents") to the extent Seller has such items in its possession or control or
can reasonably acquire or prepare them.
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(a) Zoning Compliance; Permits. Information regarding all applicable
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governmental ordinances, rules and regulations, including, but not limited to,
zoning and building regulations and any and all other governmental approvals
(such as building permits, building inspection approvals and certificates of
occupancy) and/or authorizations relating to the Property.
(b) Agreements. Copies of all architect contracts, construction
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contracts, service contracts, reciprocal easement agreements and any other
contracts or agreements affecting or relating to the ownership, use, occupancy,
operation, maintenance, construction or development of the Property, including,
but not limited to, copies of all guaranties and warranties with respect
thereto (collectively, the "Contracts").
(c) Tax Statements. Copies of the bills for all real property taxes
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and assessments payable with respect to the Property, or any portion thereof,
for the past two (2) years.
(d) Utilities. Evidence that all electricity, water, gas, sewer and
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other utilities required by Buyer are available to the Property including, but
not limited to, copies of any utility will serve letters.
(e) Reports, Studies, Plans and Specifications. Soils, environmental,
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engineering and building reports, studies and data relating to the Property or
any portion thereof and any and all architectural studies and plans and
specifications, topographical maps, ALTA surveys, grading plans, and similar
data relating to the Property.
(f) Maps. Any and all tentative and/or final maps and any other
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governmentally approved or processed documents relative to the subdivision of
the Property.
(g) Authority Documents. Evidence acceptable to Buyer and the Title
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Company indicating that Seller, and each individual or entity comprising Seller,
has complete power and authority to enter into this Agreement and to convey the
Property to Buyer.
(h) Flood and Other Natural Disaster Information. A copy of the Flood
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Zone Map prepared by the Federal Emergency Management Agency and any other
publication or information relating to natural hazards or disasters that could
impact the Property.
(i) Miscellaneous. Such other documents or other materials in
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Seller's possession or control relating to the Property that Buyer may
reasonably request.
6. Right of Entry. From and after the Opening of Escrow through the
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earlier to occur of the termination of this Agreement or the Closing, Buyer and
Buyer's agents, consultants, contractors and subcontractors shall have the right
to enter upon the Property to conduct or make any and all inspections and tests
as Buyer deems necessary or desirable. Buyer hereby indemnifies and holds the
Property, Seller, and Seller's shareholders, partners, members, officers,
directors, managers, employees, agents and contractors free and harmless from
and against any and all direct claims, costs, losses, damages or expenses
arising out of or resulting from such entry by Buyer or its agents, consultants,
contractors or subcontractors; provided, however, that such indemnity shall not
include consequential damages (including, but not limited to, lost profits or
the loss of value due to the discovery of environmental contamination or any
other matters). Buyer shall keep the Property free
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and clear of any mechanics' liens or materialmen's liens arising out of Buyer's
right of entry and the activities contemplated in this Section.
7. Buyer's Conditions Precedent and Termination Right.
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(a) Conditions Precedent. The obligation of the Buyer to consummate
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the purchase of the Property from Seller shall be subject to the fulfillment, or
the waiver by the Buyer, at or prior to the Closing, of each of the following
conditions precedent (collectively, "Buyer's Contingencies"):
(i) Title Review. Within five (5) business days of the date
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hereof, Buyer shall, with Seller's full cooperation, cause the Title Company to
deliver to Buyer a preliminary title report (the "Report") describing the title
to the Property, together with legible copies of the exceptions (the
"Exceptions") set forth in the Report and a color coded plot of all easements
referenced as Exceptions in the Report (the "Easement Plot"). On or before the
Closing Date, Buyer shall have approved in writing, in Buyer's sole and absolute
discretion, any matters of title disclosed by the following (collectively, the
"Title Documents"): (i) the Report; (ii) the Exceptions; (iii) the Easement
Plot, (iv) the legal description of the Property; and (v) an ALTA survey in a
form acceptable to Buyer. Buyer shall be responsible, at its sole expense, for
obtaining such ALTA survey. Buyer shall have the same rights to approve,
disapprove or conditionally approve any exceptions to title that are not created
by Buyer and that come into existence after issuance of the Report but prior to
Closing. Seller shall, on or before the Closing, remove all deeds of trust,
mortgages, mechanics liens, delinquent taxes and all other monetary liens (other
than the lien for real property taxes or assessments not yet due or payable).
(ii) Title Policy. On or before the Closing, the Title Company
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shall, upon payment of the Title Company's regularly scheduled premium, have
agreed to issue to Buyer, an ALTA extended coverage owner's policy of title
insurance ("Buyer's Title Policy") in the amount of the Purchase Price showing
fee title to the Property vested solely in Buyer and subject only to the (i) the
standard, preprinted exceptions to Buyer's Title Policy (but not including any
arbitration, co-insurance, creditors' rights or regional exceptions); (ii) a
lien (or liens) to secure payment of real property taxes or assessments not yet
due or payable; (iii) matters affecting the Property created by or with the
written consent of Buyer; and (iv) those matters specifically approved in
writing by Buyer. Buyer shall have sole responsibility for obtaining, and
bearing the cost of, any survey required by the Title Company for such extended
coverage.
(iii) Physical Inspections and Studies. On or before the
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Contingency Date, Buyer shall have approved in writing, in Buyer's sole and
absolute discretion, the results of any inspections, investigations, tests and
studies Buyer elects to make or obtain, including, but not limited to,
investigations with regard to zoning, building codes and other governmental
regulations; architectural inspections and engineering tests; soils, seismic and
geologic reports; environmental audits, inspections and studies (including Phase
I and Phase II testing); and any other physical inspections and/or
investigations as Buyer may elect to make or obtain.
(iv) Absence of Material Litigation. There shall be (i) no
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pending or overtly threatened litigation (other than litigation which is
determined by the parties in good faith, after consulting their respective
attorneys, to be without legal or factual substance or merit), whether brought
against Seller or the Buyer, that seeks to enjoin the consummation of the
transaction contemplated by this Agreement, (ii) no order that has been issued
by any court or governmental
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agency having jurisdiction that restrains or prohibits the consummation of the
purchase and sale of the Property hereunder and no proceedings pending which are
reasonably likely to result in the issuance of such an order; and (iii) no
pending or overtly threatened litigation, which has had or is expected to have a
Material Adverse Effect on the Property (as hereinafter defined).
(v) Property Documents. On or before the Contingency Date,
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Buyer shall have approved in writing, in Buyer's sole and absolute discretion,
the terms, conditions and status of all of the Property Documents.
(vi) Asset Purchase Agreement. All of the conditions precedent
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to the obligations of the Buyer under the Asset Purchase Agreement, as set forth
in the Asset Purchase Agreement, shall have been fulfilled.
(vii) Concurrent Closing. The "Closing" under the Asset Purchase
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Agreement shall occur concurrently with the Closing under this Agreement.
(viii) No Changes. As of the Closing, the physical condition of
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the Property shall be substantially the same as the condition existing as of the
Execution Date.
(ix) Representations and Warranties. All representations and
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warranties of Seller contained in this Agreement shall be materially true and
correct as of the date made and as of the Closing with the same effect as if
those representations and warranties were made at and as of the Closing.
(x) Performance of Obligations. Seller shall have performed
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and complied, in all material respects, with all of the covenants required by
this Agreement to have been performed prior to the Closing.
(b) Termination Right. Should any of Buyer's Contingencies not be
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met, Buyer may, by written notice to Seller ("Termination Notice"), terminate
this Agreement. In the event that this Agreement is so terminated, any escrow,
title or other cancellation fees shall be split equally between Buyer and Seller
unless Seller is in default hereunder, in which case Seller shall pay all such
fees.
(c) Seller's Cure Right. Buyer shall notify Seller, in the
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Termination Notice of Buyer's disapproval or conditional approval of any Title
Documents. Seller shall then have the right, but not the obligation, to (i)
remove from title any disapproved or conditionally approved Exception(s) (or
cure such other title matters that are the basis of Buyer's disapproval or
conditional approval of the Title Documents) within five (5) business days after
Seller's receipt of the Termination Notice, or (ii) provide assurances
satisfactory to Buyer that such Exception(s) will be removed (or other matters
cured) on or before the Closing. If Seller cannot or does not elect to remove
any of the disapproved Exception(s) (or cure other matters) within that period,
Buyer shall have three (3) business days after the expiration of such five (5)
business day period to give Seller written notice that Buyer elects to proceed
with the purchase of the Property subject to the disapproved Title Document(s).
If Buyer does not give such notice within the three (3) business day period,
this Agreement shall be deemed terminated.
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8. Seller's Conditions Precedent and Termination Right.
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(a) Conditions Precedent. The obligation of Seller to consummate the
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sale of the Property to Buyer shall be subject to the fulfillment, or the waiver
by Seller, at or prior to the Closing, of each of the following conditions
precedent ("Seller's Contingencies"):
(i) Representations and Warranties. All representations and
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warranties of Buyer contained in this Agreement shall be materially true and
correct as of the date made and as of the Closing with the same effect as if
those representations and warranties were made at and as of the Closing.
(ii) Performance of Obligations. Buyer shall have performed and
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complied, in all material respects, with all of its covenants required by this
Agreement to have been performed by it at or prior to the Closing.
(iii) Concurrent Closing. The "Closing" under the Asset Purchase
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Agreement shall occur concurrently with the Closing under this Agreement.
(iv) Absence of Material Litigation. There shall be (i) no
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pending or overtly threatened litigation (other than litigation which is
determined by the parties in good faith, after consulting their respective
attorneys, to be without legal or factual substance or merit), whether brought
against Seller or the Buyer that seeks to enjoin the consummation of the
transaction contemplated by this Agreement, (ii) no order that has been issued
by any court or governmental agency having jurisdiction that restrains or
prohibits the consummation of the purchase and sale of the Property hereunder or
any proceedings pending which are reasonably likely to result in the issuance of
such an order; and (iii) no other pending or overtly threatened litigation,
which has had or is expected to materially and adversely affect the ability of
the parties to consummate the transaction contemplated hereby.
(b) Termination Right. Should any of Seller's Contingencies not be
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met, Seller may, by written notice to Buyer, terminate this Agreement. If this
Agreement is so terminated, then any escrow, title or other cancellation fees
shall be split equally between Buyer and Seller unless Buyer is in default
hereunder, in which case Buyer shall pay all such fees.
9. Seller's Covenants During Escrow. Effective as of the Execution Date,
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Seller hereby covenants with Buyer as follows:
(a) Maintain Insurance. Up to and including the Closing, Seller shall
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maintain, at its sole cost and expense, all insurance maintained by Seller with
respect to the Property as of the Execution Date.
(b) Maintenance of Property. Up to and including the Closing, Seller
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shall maintain, at its sole cost and expense, the Property in good condition and
repair and consistent with past practices.
(c) No Material Alterations. Seller shall make no material
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alterations, additions or improvements to the Property without the prior written
consent of Buyer, which consent shall not be unreasonably withheld.
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10. Seller's Deliveries to Escrow Holder.
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(a) Seller's Delivered Documents. At least one (1) business day prior
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to the Closing Date, Seller shall deposit or cause to be deposited with Escrow
Holder the following items, duly executed and, where appropriate, acknowledged
("Seller's Delivered Items"):
(i) Deed. The Grant Deed in the form attached hereto as Exhibit
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B (the "Deed").
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(ii) FIRPTA. Seller's Certification of Non-Foreign Status in
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the form attached hereto as Exhibit C (the "FIRPTA Certificate").
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(iii) General Assignment. Four (4) original counterparts of the
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General Assignment in the form attached hereto as Exhibit D (the "General
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Assignment").
(iv) Authority. Such proof of Seller's authority and
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authorization to enter into this Agreement, on the part of each individual or
entity comprising Seller, and to consummate the transaction contemplated hereby
as may be reasonably requested by Buyer or the Title Company.
(v) Further Documents or Items. Any other documents or items
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reasonably required to close the transaction contemplated by this Agreement.
(b) Failure to Deliver. Should any of Seller's Delivered Items not be
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timely delivered to Escrow, Buyer may, by written notice to Seller, terminate
this Agreement; provided, however, that Buyer may (but shall not be obligated
to) in such notice provide Seller with three (3) business days to deliver all of
Seller's Delivered Items. If Buyer's notice provides Seller such three (3)
business days to deliver Seller's Delivered Items, and if Seller's Delivered
Items are not delivered within such period, then this Agreement shall
automatically terminate without further action or notice, and Buyer shall be
entitled to pursue all rights and remedies against Seller available to Buyer.
If this Agreement is so terminated, then any escrow, title or other cancellation
fees shall be paid by Seller.
11. Buyer's Deliveries to Escrow.
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(a) Buyer's Delivered Items. At least one (1) business day prior to
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the Closing Date, Buyer shall deposit or cause to be deposited with Escrow
Holder the following ("Buyer's Delivered Items"):
(i) Funds. The Purchase Price, by wire transfer of immediately
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available funds to an account designated by Seller, plus or minus Buyer's share
of closing costs and charges and Buyer's share of prorations set forth on the
Proration and Expense Schedule (as defined below).
(ii) General Assignment. Four (4) original counterparts of the
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General Assignment duly executed by Buyer.
(iii) Further Documents or Items. Any other documents or items
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reasonably required to close the transaction contemplated by this Agreement.
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(b) Failure to Deliver. Should any of Buyer's Delivered Items not be
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timely delivered to Escrow, Seller may, by written notice to Buyer, terminate
this Agreement; provided, however, that Seller may (but shall not be obligated
to) in such notice provide Buyer with three (3) business days to deliver all of
Buyer's Delivered Items. If Seller's notice provides Buyer such three (3)
business days to deliver Buyer's Delivered Items, and if Buyer's Delivered Items
are not delivered within such period, then this Agreement shall automatically
terminate without further action or notice. If this Agreement is so terminated,
then any escrow, title or other cancellation fees shall be paid by Buyer.
12. Costs and Expenses.
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(a) Seller's Costs. If the transaction contemplated by this Agreement
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is consummated, then Seller shall bear the following costs and expenses: (i)
one-half (1/2) of Escrow Holder's fee; (ii) Seller's share of prorations; (iii)
the portion of the cost of Buyer's Title Policy equal to the cost of a CLTA
owner's title policy; (iv) one-half (1/2) of all document recording fees; and
(v) documentary transfer taxes and fees (collectively, "Seller's Costs").
(b) Buyer's Costs. If the transaction contemplated by this Agreement
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is consummated, then Buyer shall bear the following costs and expenses: (i) any
additional cost for an ALTA extended coverage owner's title policy (including
the cost of any survey necessary to obtain such extended coverage) and any title
endorsements required by Buyer; (ii) one-half (1/2) of all document recording
fees; (iii) one-half (1/2) of Escrow Holder's fee; and (iv) Buyer's share of
prorations (collectively, "Buyer's Costs").
(c) Generally. Buyer and Seller shall pay, respectively, Escrow
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Holder's customary charges to buyers and sellers for document drafting,
recording and miscellaneous charges. If, through no fault of either Buyer or
Seller, Escrow fails to close, Buyer and Seller shall share equally all of
Escrow Holder's fees and charges; however, if the transaction fails to close as
the result of the default of either party, then such defaulting party shall bear
all Escrow Holder's fees and expenses. Each party shall bear the costs of its
own attorneys and consultants in connection with the negotiation and preparation
of this Agreement and the consummation of the transaction contemplated hereby.
All other costs and expenses shall be allocated between Buyer and Seller in
accordance with the customary practice of the county in which the Property is
located. The items provided in this Section are hereinafter referred to as
"General Expenses".
13. Prorations. All revenues (if any) and expenses relating to the
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Property, currently received by or incurred by Seller (including, but not
limited to, property taxes and insurance), shall be prorated as of the Closing.
Not less than seven (7) business days prior to the Closing, Seller shall deliver
to Buyer a tentative schedule of prorations ("Proration and Expense Schedule")
for Buyer's approval. If any prorations made under this Section shall require
final adjustment after the Closing, then the parties shall make the appropriate
adjustments promptly when accurate information becomes available and either
party hereto shall be entitled to an adjustment to correct the same. Any
corrected or adjustment proration shall be paid promptly in cash to the party
entitled thereto.
14. Closing Procedure. When the Title Company is ready to issue the Title
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Policy and all required documents and funds have been deposited with Escrow
Holder, and the parties are prepared to close under the Asset Purchase
Agreement, Escrow Holder shall immediately close Escrow in the manner and order
provided below.
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(a) Recording. Escrow Holder shall cause the Deed, and any other
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documents that the parties hereto may mutually direct, to be recorded pursuant
to applicable law in the county in which the Property is located and obtain
conformed copies thereof for distribution to Buyer and Seller. Escrow Holder
shall prepare and submit to the recorder's office a separate documentary
transfer tax statement showing the amount of documentary transfer tax due, which
statement and the information contained therein shall not be made a matter of
public record.
(b) Disburse Funds. Escrow Holder shall debit or credit (as provided
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herein) all Buyer's Costs, Seller's Costs and General Expenses; prorate all
matters based upon the agreed upon Proration and Expense Schedule; disburse the
Purchase Price to Seller promptly upon the Closing; and disburse the remaining
funds, if any, to Buyer.
(c) Documents to Seller. Escrow Holder shall disburse to Seller two
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(2) original, fully executed General Assignments, each other document (or copies
thereof) deposited into Escrow by Buyer pursuant hereto, and a conformed copy of
the Deed.
(d) Documents to Buyer. Escrow Holder shall deliver to Buyer the
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original FIRPTA Certificate executed by Seller, two (2) original, fully executed
General Assignments, each other document (or copies thereof) deposited into
Escrow by Seller pursuant hereto, and a conformed copy of the Deed.
(e) Title Company. Escrow Holder shall cause the Title Company to
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issue the Buyer's Title Policy to Buyer.
(f) Closing Statement. Escrow Holder shall forward to both Buyer and
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Seller a separate accounting of all funds received and disbursed for each party.
(g) Informational Reports. Escrow Holder shall file any information
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reports required by Internal Revenue Code Section 6045(e), as amended.
15. Representations and Warranties.
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(a) Seller's Representations and Warranties. In consideration of
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Buyer entering into this Agreement and as an inducement to Buyer to purchase the
Property, Seller makes the following representations and warranties as of the
Execution Date and at and as of the Closing, each of which is material and is
being relied upon by Buyer (and the truth and accuracy of which shall constitute
a condition precedent to Buyer's obligations hereunder). When used in this
Agreement, the phrases "Material Adverse Effect on Seller" and "Material Adverse
Effect on the Property" shall both mean a circumstance, state of facts, event,
consequence or result that materially and adversely affects, or could reasonably
be expected to materially and adversely affect the Property or the ability of
Seller to consummate the transaction which it is required to consummate
hereunder; and the phrase "Material Adverse Effect on Buyer" shall mean a
circumstance, state of facts, event, consequence or result that materially and
adversely affects, or could reasonably be expected to materially and adversely
affect the financial condition or operating results of Buyer, or the ability of
Buyer to consummate the transactions it is required to consummate hereunder.
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(i) Compliance with Laws; Licenses and Permits.
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(A) Seller is in compliance with all, and is not in
violation of any, law, ordinance, order, decree, rule or regulation of any
governmental agency or authority, the violation of or noncompliance with which
could have a Material Adverse Effect on the Property. No unresolved (i) charges
of violations of laws or regulations relating to the Property have been made or
threatened, (ii) proceedings or investigations relating to the Property are
pending or to Seller's Knowledge (as defined below), have been threatened, and
(iii) citations or notices of deficiency have been issued or have been
threatened, against Seller relating to or arising out of the Property by any
governmental authorities, which has had or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, on the Property;
and, to Seller's Knowledge, there are no facts or circumstances upon which any
such charges, proceedings, investigations, or citations or deficiency notices,
reasonably may be instituted, issued or brought hereafter.
(B) Schedule 1 attached hereto contains a true, correct
----------
and complete list of all governmental licenses, permits, authorizations,
franchises, or certificates or rights (contractual or other) relating to the
Property, that are held by Seller (collectively, "Licenses and Permits"). All of
the Licenses and Permits are in full force and effect at the date hereof. There
is no other license, permit, authorization, franchise, certificate or right to
operate, the absence of which has had, or could reasonably be expected to have,
a Material Adverse Effect on the Property. The Property is in compliance with
the conditions and requirements imposed by or in connection with such Licenses
and Permits. Seller has not received any notice, and to Seller's Knowledge there
is no reason to believe, that any governmental authority intends to cancel,
terminate or modify any of such Licenses or Permits or that there are valid
grounds for any such cancellation, termination or modification. Seller has
delivered or made available to Buyer a true, correct and complete copies of the
most recent safety inspection and quality assurance reports prepared by any
employees or consultants of Seller or by any governmental authorities relating
to the Property.
(C) As used in this Agreement, "Seller's Knowledge" shall
mean (x) as of the date hereof, only the actual knowledge of the following
employees of Seller or the knowledge such employees would reasonably be expected
to have: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇; and (y) as of the Closing
Date, only the actual knowledge of the following employees of Seller or the
knowledge such employees would reasonably be expected to have: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
(ii) No Broker. Seller has not retained or used the services
---------
of an agent, finder, or broker in connection with the transaction contemplated
by this Agreement.
(iii) Property Documents. All of the copies of the Property
------------------
Documents delivered to Buyer are true and complete copies of their respective
originals and are true, accurate and correct in all material respects.
(iv) Litigation. There is no action, suit, proceeding or
----------
investigation, or any counter or cross-claim in an action brought by or on
behalf of Seller, whether at law or in equity, or before or by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, or before any arbitrator of any kind, that is pending or, to the best
knowledge of
9
Seller, threatened, against Seller, which (i) could reasonably be expected to
affect adversely Seller's ability to perform its obligations under this
Agreement or complete the transaction contemplated hereby, or (ii) involves the
possibility of any judgment or liability, or which may become a claim, against
Buyer or the Property. Seller is not subject to any judgment, order, writ,
injunction, decree or award of any court, arbitrator or governmental department,
commission, board, bureau, agency or instrumentality having jurisdiction over
Seller or the Property that affects, involves, or relates to the Property.
(v) Property Matters. To Seller's Knowledge, there is not now
----------------
pending or threatened any proceeding for the rezoning of the Property or any
portion thereof, or the taking of any other action by governmental authorities
that would have a Material Adverse Effect on the value of the Property or use
thereof. There is no pending or, to Seller's Knowledge, threatened condemnation,
eminent domain, or similar proceeding affecting the Property or any portion
thereof.
(vi) No Defaults. There are no defaults under any of the
-----------
Property Documents or Title Documents, nor has any event occurred that with
notice or the passage of time, or both, would constitute a default thereunder.
(vii) Other Agreements. To Seller's Knowledge, there are no
----------------
other contracts, leases, licenses, commitments, understandings or other
agreements affecting or relating to the Property (including but not limited to
any option or other right to lease or acquire the Property), in which Seller is
a party, other than those that have been disclosed to Buyer in writing.
(viii) Representations and Warranties of Seller. The
----------------------------------------
representations and warranties of Seller contained herein do not contain any
statement of a material fact that was untrue when made or omits any information
necessary to make any such statement contained therein, in light of the
circumstances under which such statement was made, not misleading. Seller has
not made any representations or warranties to Buyer with respect to the federal,
state or local income or other tax consequences to Buyer of the consummation by
it of the transaction contemplated hereby.
(b) Subsequent Changes to Seller's Representations and Warranties.
-------------------------------------------------------------
If, subsequent to the Execution Date and on or before the Closing, Seller
obtains knowledge that any of the foregoing representations or warranties have
become incorrect in any respect, Seller shall promptly notify Buyer in writing
of the occurrence of such event. Buyer shall have the right to approve or
disapprove any such change and to terminate this Agreement by written notice to
Seller if Buyer disapproves any such change. If, following the disclosure of
such change, Buyer terminates this Agreement, the Escrow shall automatically
terminate, and Seller shall promptly reimburse Buyer for all out-of-pocket costs
incurred by Buyer in connection with the preparation, negotiation and due
diligence for this Agreement and the Asset Purchase Agreement. Upon any such
change, regardless of whether this Agreement is terminated, Buyer shall retain
all rights and remedies available against Seller for such change.
(c) Seller's Indemnity for Breach of Representations and Warranties.
---------------------------------------------------------------
Subject to the provisions of Section 16, Seller hereby agrees that it will
indemnify, hold harmless and defend Buyer and each of its directors, officers,
stockholders, employees and agents and the respective successors and assigns of
Buyer and such other persons (all of the foregoing, collectively, the
"Indemnified Parties" or, individually, an "Indemnified Party"), from and
against any and all Buyer Liabilities (as hereinafter defined) that arise from
or are in connection with any facts, circumstances or
10
events, the existence or happening of which constitutes a breach of or
inaccuracy in any of the representations or warranties of Seller contained in
this Agreement or other documents contemplated hereby.
"Buyer Liabilities," as used in this Agreement, shall mean: (x)
demands, claims, actions, suits, and any other legal or investigative
proceedings brought against any or all of the Indemnified Parties, and any
judgments rendered therein or settlements thereof, and (y) all liabilities,
damages, losses, Taxes (as defined in the Asset Purchase Agreement, costs and
expenses, including, without limitation, credits, refunds or exchanges, and
reasonable attorneys' fees, incurred by any of the Indemnified Parties, whether
or not they have arisen from or were incurred in or as a result of any demand,
claim, action, suit, assessment or other proceeding or any settlement or
judgment.
(d) "AS-IS" Purchase. Buyer is familiar with the Property, including,
----------------
but not limited to, the physical condition of the Property and the condition of
title for the Property. Buyer has conducted all studies, investigations and
reviews of the Property's physical condition, soil, environmental condition and
all other aspects of the Property as the Buyer has seen to fit to study,
investigate and review. Except as expressly set forth in this Section, Seller
makes no representations or warranties, written or oral, of any kind or nature
with respect to the Property. Buyer hereby purchases the Property in an "AS-
--
IS", "WHERE-IS", and "WITH-ALL-FAULTS" condition.
-- -------- ---------------
16. Survival of Representations and Warranties and Covenants. All of the
--------------------------------------------------------
representations and warranties of Seller set forth in this Agreement, except as
provided in Section 17 below, shall survive the consummation of the transaction
contemplated hereby for a period of one (1) year from the Closing Date. The
covenants of any party hereto that cannot be or are not fully performed by such
party on or prior to the Closing Date shall survive the Closing until fully and
finally performed.
17. Environmental Matters.
---------------------
(a) Environmental Compliance. The use and ownership of the Property
------------------------
is in compliance in all material respects with all federal, state, regional and
local statutes, laws, ordinances, rules, regulations and orders relating to the
protection of human health and safety, natural resources of the environment,
including, but not limited to, air pollution, water pollution, noise control,
on-site or off-site hazardous substance discharge, disposal or recovery, toxic
or hazardous substances, training, information and warning provisions relating
to toxic or hazardous substances, and employee safety relating to the Property
(collectively, the "Environmental Laws"); and no notice of violation of any
Environmental Laws or of any permit, license or other authorization relating
thereto has been received or, to Seller's Knowledge, is threatened against
Seller in connection with the Property, and to Seller's Knowledge, is there any
factual basis for the giving of any such notice. No underground or above-ground
storage tanks or surface impoundments are located on the Property, except in
compliance with applicable Environmental Laws and any licenses or permits
relating thereto, and, except in compliance with any applicable Environmental
Laws and any licenses or permits relating thereto, there has been no generation,
use, treatment, storage, transfer, disposal, or release in, at, under, from, to
or into, or on the Property of toxic or hazardous substances during the
occupancy thereof by Seller or, to Seller's Knowledge, prior to such occupancy.
Seller has not received any notice or claim to the effect that Seller is or may
be liable to any governmental authority or private party as a result of the
release or threatened release of any toxic or hazardous substances in connection
with the conduct or operation of the Property, and, to Seller's Knowledge, none
of the operations of the Seller is the subject of any
11
federal, state or local investigation evaluating whether any remedial action is
needed to respond to a release or a threatened release of any toxic or hazardous
substances at the Property. Seller has not, in connection with the conduct or
operation of the Property, disposed, or had disposed of on its behalf, toxic or
hazardous substances at any site other than a federal and state licensed
hazardous waste treatment, storage and disposal facility. For purposes of this
Section, "toxic" or "hazardous substances" shall include any material, substance
or waste that, because of its quantity, concentration or physical or chemical
characteristics, is deemed under any federal, state, local or regional statute,
law, or ordinance, regulation or order, or by any governmental agency pursuant
thereto, to pose a present or potential hazard to human health or safety or the
environment, including, but not limited to, (i) any material, waste or substance
which is defined as a "hazardous substance" pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. (S)
9601, et seq.), as amended, and its related state and local counterparts, (ii)
asbestos and asbestos containing materials and polychlorinated biphenyls, and
(iii) any petroleum hydrocarbon including oil, gasoline (refined and unrefined)
and their respective constituents and any waste associated with the exploration,
development or production of crude oil, natural gas or geothermal energy.
(b) Seller's Environmental Indemnification. Seller agrees to
--------------------------------------
indemnify, protect, hold harmless, and defend Buyer, its shareholders,
directors, officers, employees, agents and any successors to Buyer's interest in
the chain of title to the Property (including such successors' shareholders,
directors, officers, employees, and agents), from and against any and all
claims, liabilities, penalties, damages, forfeitures, losses, expenses and costs
(including, but not limited to, investigation, monitoring, remediation, removal,
clean-up, abatement, response and attorneys' fees and costs) arising out of or
relating to (i) any facts, circumstances or events, the existense or happening
of which constitutes a breach of or inaccuracy in any of the representations or
warranties of Seller contained in this Agreement, or (ii) the release or
threatened release to soil or ground water of hazardous substances by any person
in, at, under, from, to or into, or on the Property before the Closing Date.
Seller's environmental indemnity set forth in this Section shall survive the
consummation of the transaction contemplated hereby for a period of four (4)
years from the Closing Date. Notwithstanding anything to the contrary stated in
this Agreement, the parties hereby agree that Seller's liability in connection
with any violation(s) of this Section shall be limited to a maximum aggregate
amount of Ten Million and No/100 Dollars ($10,000,000.00).
(c) Buyer's Environmental Indemnification. Buyer agrees to indemnify,
-------------------------------------
protect, hold harmless, and defend Seller, its shareholders, directors,
officers, employees and agents, from and against any and all claims,
liabilities, penalties forfeitures, losses, expenses or costs (including, but
not limited to, investigation, monitoring, remediation, removal, clean-up,
abatement, response and attorney's fees and costs) arising out of or relating to
any release or threatened release to soil or ground water of hazardous
substances by Buyer on the Property after the Closing Date. Buyer's
environmental indemnity set forth in this Section shall survive the consummation
of the transaction contemplated hereby for a period of four (4) years from the
Closing Date. Notwithstanding anything to the contrary stated in this
Agreement, the parties hereby agree that Buyer's liability in connection with
any violation(s) of this Section shall be limited to a maximum aggregate amount
of Ten Million and No/100 Dollars ($10,000,000.00).
12
18. Dispute Resolution Provision.
----------------------------
(a) Any dispute arising out of or relating to this Agreement shall be
resolved in accordance with the procedures specified in this Section 17(a),
which shall be the sole and exclusive procedures for the resolution of any such
disputes.
(i) For any dispute or claim arising out of or relating to this
Agreement, or breach hereof, the parties, prior to filing any claims in a court
of law or to seeking binding arbitration, shall in good faith first negotiate a
written resolution of such dispute or claim within a period not to exceed
fifteen (15) days from the date of receipt of a party's request for such
negotiation. Such negotiations shall be conducted by managers of each party who
have authorization to resolve any such dispute or claim. In the event the
parties cannot negotiate a written resolution to such dispute or claim during
this fifteen-day negotiation period, and prior to filing any claims in a court
of law or to binding arbitration, the parties shall then submit such dispute or
claim to non-binding mediation with JAMS/ENDISPUTE or its successor. The
mediation may be initiated by the written request of either party to the other
party, shall commence within fifteen (15) days of the receipt of such notice and
shall be conducted in Orange County, California accordance with such mediation
procedures established by JAMS/ENDISPUTE or its successor, unless otherwise
agreed by the parties. The mediation shall not exceed a period of thirty (30)
days.
(ii) In the event the parties do not resolve such dispute or
claim as a result of such mediation or in the event such dispute or claim is not
resolved within ninety (90) days of the commencement of the mediation, either
party may seek to resolve the dispute or claim in a court of competent
jurisdiction or seek other legal or equitable resolution. The judgment or decree
of a court shall be deemed final when the time for appeal, if any, shall have
expired and no appeal shall have been taken or when all appeals taken shall have
been finally determined. Notwithstanding the foregoing, either party at any time
may apply to any court of competent jurisdiction for injunctive relief in the
event of an alleged breach of this Agreement or otherwise to prevent irreparable
harm.
19. General Provisions.
------------------
(a) Condemnation. If any portion of the Property shall be taken or
------------
appropriated by a public or quasi public authority exercising the power of
eminent domain, Buyer shall have the right, at its option, to (i) terminate this
Agreement or (ii) proceed with the purchase of the Property and receive all of
the award or payment made in connection with such taking.
(b) Notices. All notices, requests, demands or other communications
-------
hereunder shall be in writing and shall be deemed to have been duly given, (i)
on the date of delivery if delivered in person; (ii) on the second business day
after being sent by fax, provided that the successful transmission of the fax
has been confirmed through a confirmation function sheet provided by the fax
machine used for such transmission and a true and correct copy thereof is sent
by first class mail to the party to which the fax was sent within one (1)
business day thereafter; or (iii) on the third business day following the
deposit thereof in the United States Mails, provided it is mailed by certified
mail, return-receipt requested and postage prepaid and properly addressed, as
set forth herein. Any party hereto may from time to time, by written notice to
the other parties, designate a different address, which shall be substituted for
the one specified herein.
13
(c) Brokers. Each party hereto hereby represents and warrants to the
-------
other that it has dealt with no broker or finder in connection with this
transaction other than as set forth in the Asset Purchase Agreement. Each party
hereto agrees to indemnify, defend and hold harmless the other party from and
against any and all losses, liens, claims, judgments, liabilities, costs,
expenses or damages (including reasonable attorneys' fees and court costs) of
any kind of character arising out of or resulting from any agreement,
arrangement or understanding alleged to have been made by such party or on its
behalf with any broker or finder in connection with this Agreement or the
transaction contemplated hereby. The foregoing indemnity shall survive the
Closing or the termination of this Agreement and shall not be limited by any
provision of this Agreement.
(d) Termination. This Agreement may be terminated and the
-----------
transactions herein contemplated may be abandoned for the reasons, and in the
manner, set forth in the Asset Purchase Agreement.
(e) Assignment. Neither Seller nor Buyer may assign this Agreement,
----------
or assign its rights or delegate its duties hereunder, without the prior written
consent of the other party hereto.
(f) Confidentiality. This Agreement shall be subject to the
---------------
Confidentiality provisions that are set forth in the Asset Purchase Agreement.
(g) Severability. Any provision of this Agreement which is illegal,
------------
invalid or unenforceable shall be ineffective to the extent of such illegality,
invalidity or unenforceability, without affecting in any way the remaining
provisions hereof.
(h) Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute one and the same instrument.
(i) No Obligations to Third Parties. Except as otherwise expressly
-------------------------------
provided herein, the execution and delivery of this Agreement shall not be
deemed to confer any rights upon, nor obligate any of the parties to this
Agreement to, any person or entity other than the parties hereto.
(j) Exhibits and Schedules. The exhibits and schedules attached
----------------------
hereto are incorporated herein by this reference for all purposes.
(k) Interpretation; Headings. This Agreement is the result of arms'-
------------------------
length negotiations between the parties hereto and no provision hereof, because
of any ambiguity found to be contained therein or otherwise, shall be construed
against a party by reason of the fact that such party or its legal counsel was
the draftsman of that provision. The section, subsection and any paragraph
headings contained herein are for the purpose of convenience only and are not
intended to define or limit or affect, and shall not be considered in connection
with, the interpretation of any of the terms or provisions of this Agreement.
(l) Waiver. No waiver by one party of the other party's obligations,
------
or of any breach or default hereunder by any other party, shall be valid or
effective, unless such waiver is set forth in writing and is signed by the party
giving such waiver; and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature or any other breach
or default by such other party.
14
(m) Governing Law. This Agreement is deemed to have been made in the
-------------
State of California and its interpretation, its construction and the remedies
for its enforcement or breach are to be applied pursuant to, and in accordance
with, the laws of the State of California for contracts made and to be performed
in that state.
(n) Entire Agreement; Amendment. This Agreement, and the Exhibits and
---------------------------
Schedules hereto, and each additional agreement and document to be executed and
delivered pursuant hereto, constitute all of the agreements of the parties with
respect to, and supersede all prior agreements and understandings relating to
the subject matter of, this Agreement or the transactions contemplated by this
Agreement. This Agreement may not be modified or amended except by a written
instrument specifically referring to this Agreement signed by the parties
hereto.
(o) Successors and Assigns. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the permitted successors and assigns of the
parties hereto.
(p) Possession. Possession of the Property shall be delivered to
----------
Buyer on the Closing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
------------------
the day and year first written above.
"Seller"
Hewlett-Packard Company,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Its: Group Business Development Manager
---------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Its: Corporate Counsel
---------------------------------------
"Buyer"
Powerwave Technologies, Inc.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Its: Vice President, Finance and Chief
---------------------------------------
Financial Officer
---------------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Its: President and Chief Executive Officer
---------------------------------------
15
Acceptance by Escrow Holder:
First American Title Insurance Company, a California corporation, hereby
acknowledges that it has received a fully executed copy of the foregoing
Purchase and Sale Agreement and Joint Escrow Instructions by and between
Hewlett-Packard Company, a Delaware corporation, as Seller, and Powerwave
Technologies, Inc., a Delaware corporation, as Buyer, and agrees to act as
Escrow Holder thereunder and to be bound by and strictly perform the terms
thereof as such terms apply to Escrow Holder.
Dated: _____________, 1998
First American Title Company
By:
-----------------------------------
Name:
---------------------------------
Its:
----------------------------------
16