exv10w1



 





Exhibit 10.1




EXECUTION COPY




Amended and Restated

Settlement Agreement by and between

Arthur Steinberg, as Court-Appointed Receiver

for the Wood River Entities, and Endwave Corporation




          This Amended and Restated Settlement Agreement (this “Agreement”) is dated as of
December 20, 2007, and is by and between (a) Arthur Steinberg, as court-appointed receiver (the
“Receiver”) for Wood River Partners, L.P. (“Wood River Domestic”), Wood River
Partners Offshore, Ltd. (“Wood River Offshore” and, together with Wood River Domestic, the
“Wood River Funds”), Wood River Capital Management, L.L.C. (“Wood River Capital”),
and Wood River Associates, L.L.C. (collectively, including the Wood River Funds and Wood River
Capital, the “Wood River Entities”) and (b) Endwave Corporation (“Endwave”). This
Agreement, subject to Sections 1(b) and 2(a), amends, restates and supersedes in its entirety that
certain Settlement Agreement, dated as of May 17, 2007, by and between the Receiver and Endwave
(the “Original Agreement”).




          WHEREAS, on October 13, 2005, the United States Securities and Exchange Commission (the
“Commission”) commenced an action (the “SEC Action”) against the Wood River
Entities and John Hunting Whittier (“Whittier”) in the United States District Court for the
Southern District of New York (the “Court”);




          WHEREAS, in the SEC Action, the Commission alleged that Whittier and the Wood River Entities
violated Sections 10(b), 13(d) and 16(a) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and certain rules promulgated thereunder and Sections 206(1) and 206(2) of
the Investment Advisers Act of 1940, as amended, by, among other things, acquiring beneficial
ownership of a large percentage of the outstanding common stock of



 









 






Endwave without disclosing such beneficial ownership through required filings with the
Commission, and by making misrepresentations and omissions of material facts concerning the Wood
River Funds;




          WHEREAS, also on October 13, 2005, the Commission filed an Application for Entry of an Order
Granting a Preliminary Injunction, Freezing Assets, and Appointing a Receiver (the “Preliminary
Injunction Application”) seeking, among other things, the appointment of a receiver;




          WHEREAS, the Commission and Whittier, on consent of his counsel, agreed to, and the Court
subsequently entered, a Stipulation And Order Granting Preliminary Injunction, Freezing Assets And
Appointing Receiver (the “Preliminary Injunction Order”) granting the relief requested in
the Preliminary Injunction Application and providing for the immediate appointment of the Receiver;




          WHEREAS, beginning in at least 2004 and during the first nine months of 2005, at the direction
of Whittier, the Wood River Funds purchased substantial quantities of Endwave common stock and
continued to own a large number of such shares at the time of the commencement of the SEC Action;




          WHEREAS, the 4,102,247 shares of Endwave common stock beneficially owned by the Wood River
Funds (the “Endwave Shares”) constitute the largest asset of the Wood River Entities in
receivership;




          WHEREAS, on or about January 6, 2006, upon the application of the Receiver, the Court entered
an order fixing February 28, 2006 as the last date for creditors and equity security holders to
file proofs of claim and/or equity interest against any of the Wood River Entities (the “Bar
Date”);




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          WHEREAS, prior to the Bar Date, on or about February 6, 2006, Endwave filed a proof of claim
against each of the Wood River Entities in an unliquidated amount (the “Endwave Filed
Claim”). By so doing, Endwave asserted a claim for disgorgement of presumed profits realized
by any of the Wood River Entities pursuant to Section 16(b) of the Exchange Act (the “Section
16(b) Claim”) and for other damages to which Endwave asserted it may be entitled as a result of
Whittier’s and the Wood River Entities’ accumulation of Endwave common stock allegedly in violation
of the securities laws;




          WHEREAS, after an exchange of documents and information, and after extensive good faith
negotiations between the Receiver on behalf of the Wood River Entities and Endwave (each a
“Party” and, collectively, the “Parties”), on May 17, 2007, the Parties agreed to
resolve any and all claims the Parties have or may have against each other, including, without
limitation, the Endwave Filed Claim, and to provide a mechanism for the ultimate disposition of the
Endwave Shares, in accordance with the terms of the Original Agreement;




          WHEREAS, in order to facilitate a disposition of the Endwave Shares in a mutually-agreed
manner that was not contemplated by the Original Agreement, the Parties desire to amend and restate
the Original Agreement as set forth in this Agreement.




          NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein
and for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Parties hereto agree as follows:




          1. (a) The Parties acknowledge that this Agreement is subject to approval of the Court. The
Receiver shall apply to the Court for an order authorizing and approving this Agreement in the form
annexed hereto as Exhibit “A,” or in such other form as the Parties hereto may mutually agree (the
“Approval Order”). The Receiver shall use his reasonable best efforts



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to obtain the Approval Order and, if requested by the Receiver, Endwave shall file a joinder
to the Receiver’s application for the Approval Order.




               (b) This Agreement shall become effective (such date, the “Effective Date”) at the
time the Approval Order is executed by the Court. If the Effective Date does not occur before
January 4, 2008 (unless extended in writing by the Parties), or if the Approval Order is reversed
or vacated on appeal, then this Agreement shall be null and void, the Parties shall be restored to
the status quo ante (and the Original Agreement and the related Registration Rights Agreement (as
defined herein) shall be automatically reinstated in their entirety, remain in full force and
effect and shall not be affected hereby), and nothing herein shall be deemed an admission by any
Party hereto. If the Approval Order is executed by the Court but its effectiveness is thereafter
stayed by a court of competent jurisdiction (a “Stay”), then the effectiveness of this
Agreement and the Parties’ obligations hereunder shall be stayed until such Stay is vacated (and
the Original Agreement and the related Registration Rights Agreement shall be automatically
reinstated in their entirety, remain in full force and effect and shall not be affected hereby
during the period of the Stay).



          2. (a) Within one business day after the later of the Effective Date and the filing with the
Commission of the Form 8-K described in Section 2(b), Endwave and the Receiver shall execute and
deliver a stock purchase agreement in the form annexed hereto as Exhibit “B,” or in such other form
as the Parties hereto may mutually agree (the “Stock Purchase Agreement”) providing for
Endwave’s purchase of 2,502,247 of the Endwave Shares on the terms and subject to the conditions
set forth therein. The Stock Purchase Agreement shall include an amendment to that certain
Registration Rights Agreement, dated as of May 17, 2007, between the Receiver and Endwave (the
“Registration Rights Agreement”) permitting, among


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other things, (i) the purchase of shares contemplated by the Stock Purchase Agreement and the
sale of the balance of the Endwave Shares by the Wood River Funds to the Permitted Investors (as
defined in the Stock Purchase Agreement) (the “Investor Purchase”) and (ii) the termination
of the Registration Rights Agreement immediately following the later of the closing of the purchase
of Endwave Shares pursuant to the Stock Purchase Agreement and the Investor Purchase. The Stock
Purchase Agreement and Registration Rights Agreement are incorporated as if set forth in this
Agreement in their entirety. If the Stock Purchase Agreement is terminated prior to the
consummation of the transactions contemplated thereby, this Agreement shall become null and void as
of the date of such termination and the Parties shall be restored to the status quo ante (and the
Original Agreement and the related Registration Rights Agreement shall be automatically reinstated
in their entirety, remain in full force and effect and shall not be affected hereby).




               (b) Within one business day after the execution and delivery of this Agreement by the Parties,
Endwave shall file with the Commission a current report on Form 8-K in form and substance
reasonably acceptable to the Receiver (i) amending the plan of distribution set forth in the
registration statement (SEC File No. 333-144054) to permit the Investor Purchase and (ii)
announcing the execution and delivery of this Agreement and disclosing its material terms as
required by said form, which disclosure shall include the material terms of the Stock Purchase
Agreement. Endwave agrees not to, without the consent of the Receiver, modify or amend the
language contained in such Form 8-K or in such registration statement until after the earlier of
the termination of the Stock Purchase Agreement and the Closing.




          3. On the terms and subject to the conditions set forth in the Stock Purchase Agreement, the
Receiver shall (pay to Endwave the reasonable and documented expenses


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incurred by Endwave relating to the transactions contemplated by the Registration Rights
Agreement, this Agreement and the Stock Purchase Agreement, including legal fees, accounting fees,
printing fees and financial advisory fees up to a maximum of $300,000 (all of the foregoing amounts
collectively, the “Offering or Placement Expenses”). The Offering or Placement Expenses
shall be paid by the Receiver at the closing of the purchase of the Endwave Shares pursuant to the
Stock Purchase Agreement (the “Closing”). The Offering or Placement Expenses shall be paid
in cash.




          4. Intentionally Omitted.




          5. Effective at the time of the Closing, by operation of this Section (for the avoidance of
doubt, without the need for any further steps or actions to be taken by any party), the Receiver,
on behalf of the Wood River Entities, hereby releases Endwave and each of its affiliates, and the
officers, directors and employees of each of them (collectively, “Endwave Parties”), and
Endwave’s counsel, advisors and representatives, from any and all claims, actions, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments, executions,
liabilities, expenses and demands whatsoever, at law or in equity, whether contingent or matured,
liquidated or unliquidated, known or unknown, direct or derivative (“Claims”), including,
without limitation, any and all Claims that the Receiver and/or the Wood River Entities ever had,
now have or hereafter can, shall or may have, relating to Endwave, the circumstances giving rise to
the SEC Action and the Endwave Filed Claim from the beginning of time until the time of the
Closing; provided however, that nothing herein shall release the Endwave Parties
from any of their obligations under the terms of this Agreement, the Stock Purchase Agreement, or
the Registration Rights Agreement.




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          6. Effective at the time of the Closing, by operation of this Section (for the avoidance of
doubt, without the need for any further steps or actions to be taken by any party), the Endwave
Parties hereby release the Receiver and each of his affiliates, counsel, advisors and
representatives and the Wood River Entities from any and all Claims, including, without limitation,
any and all Claims that any of the Endwave Parties ever had, now have or hereafter can, shall or
may have, relating to the Wood River Entities, the circumstances giving rise to the SEC Action and
the Endwave Filed Claim from the beginning of time until the time of the Closing; provided
however, that nothing herein shall release the Receiver and the Wood River Entities from
any of their obligations under the terms of this Agreement, the Stock Purchase Agreement or the
Registration Rights Agreement.




          7. Endwave and the Receiver each understand that this Agreement includes a release of all
unknown and unsuspected claims and acknowledge that it or he has read and understands Section 1542
of the California Civil Code, which states:





A general release does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor.


Endwave and the Receiver hereby waive, effective at the time of the Closing, on their own behalf
and, in the case of the Receiver, on behalf of the Wood River Entities, all rights and benefits
under Section 1542 of the California Civil Code and any other similar law with regard to this
Agreement, including the release of unknown and unsuspected claims contained herein.




          8. To more fully effectuate the release contained in paragraph 6 above, within three business
days of its receipt of the Offering or Placement Expenses, Endwave shall withdraw with prejudice
the Endwave Filed Claim.




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          9. The Parties hereto represent and warrant that they are fully authorized to enter into and
perform under this Agreement, on behalf of themselves (and, in the case of the Receiver, the Wood
River Entities), without any further or other consent or authorization from any person or entity,
except with respect to the Receiver, whose authority to perform this Agreement is subject to
execution by the Court of the Approval Order.




          10. This Agreement may not be modified, amended or waived except in writing by the Party
against whom such modification, amendment or waiver is sought to be enforced.




          11. This Agreement shall be governed by, construed and enforced in accordance with the laws of
the State of New York without regard to the conflicts of law rules thereof. The Court shall have
exclusive jurisdiction over all matters related to this Agreement, including, among other things,
for the purpose of ensuring that the Offering or Placement Expenses referred to in paragraph 3
above are not subject to disgorgement for any reason.




          12. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto
and their respective successors and assigns.




          13. This Agreement (together with the related Stock Purchase Agreement and Registration Rights
Agreement) constitutes the sole and entire agreement and understanding of the Parties hereto with
respect to the subject matter of this Agreement (and such related Stock Purchase Agreement and
Registration Rights Agreement) and, subject to Sections 1(b) and 2(a), supersedes all prior
agreements, whether written or oral, with respect hereto. Subject to Sections 1(b) and 2(a), all
prior discussions, agreements and understandings of every kind and nature among the Parties with
respect thereto are merged into and superseded by this Agreement.




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          14. This Agreement may be executed by facsimile and in any number of counterparts, each of
which when so executed shall be deemed an original, but all such counterparts shall constitute but
one and the same Agreement.




          15. It is expressly understood and agreed by the Parties hereto that (i) this Agreement is
executed and delivered by the Receiver, not individually or personally but solely in his capacity
as Receiver for the Wood River Entities, in the exercise of the powers and authority conferred and
vested in him under the Preliminary Injunction Order; (ii) each of the representations,
undertakings, and agreements made herein on the part of the Receiver is made and intended not as
personal representations, undertakings and agreements by the Receiver but is made and intended for
the purpose of binding only the Receiver in his capacity as Receiver for the Wood River Entities;
and (iii) under no circumstances shall the Receiver be personally liable for the payment of any
indebtedness or expenses of the Wood River Entities or be liable for the breach or failure of any
obligation, representation, warranty, or covenant made or undertaken by the Wood River Entities
under this Agreement.




          16. All notices, requests and other communications provided in connection with this Agreement,
whether or not required, shall be in writing, shall be delivered by hand, by first-class mail or
overnight courier, shall be deemed given when received (whether or not accepted) or, in the case of
a mailing, upon deposit with the U.S. Mail, and shall be addressed as set forth below or to such
other persons or addresses as may designated by the Parties in writing from time to time.




	 	 	 
	Notice to the Receiver:

	 	Notice to Endwave:
	Arthur Steinberg, Esq.

	 	Mr. Edward A. Keible
	Phillip A. Geraci, Esq.

	 	President and Chief Executive Officer
	Rory A. Greiss, Esq.

	 	Endwave Corporation
	Steven G. Canner, Esq.

	 	130 Baytech Drive
	Kaye Scholer LLP

	 	San Jose, California 95134






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	425 Park Avenue

	 	Telephone: (408) 522-3100
	New York, New York 10022-3598

	 	Facsimile: (408) 522-3197
	Telephone: (212) 836-8000
	 	 
	Facsimile: (212) 836-8689

	 	with a copy to:
	 
	 	 
	 

	 	Jodie M. Bourdet, Esq.

Robert L. Eisenbach III, Esq.

Cooley Godward Kronish LLP 

101 California Street, 5th Floor

San Francisco, California 94111

Telephone: (415) 693-2000

Facsimile: (415) 693-2222






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          IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year
first above written.



	 	 	 	 	 	 	 	 	 
	ARTHUR STEINBERG, AS RECEIVER FOR
THE WOOD RIVER ENTITIES	 	ENDWAVE CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Arthur J. Steinberg
	 	By:
	 	/s/ Edward A. Keible Jr.	 	 
	 

	 	 
	 	 	 	 	 	 
	 

	 	Arthur Steinberg, not individually
	 	 	 	Mr. Edward A. Keible	 	 
	 

	 	but solely as the Receiver for the
	 	 	 	President and Chief Executive Officer
	 	 
	 

	 	Wood River Entities
	 	 	 	Endwave Corporation	 	 
	 

	 	c/o Kaye Scholer LLP
	 	 	 	130 Baytech Drive	 	 
	 

	 	425 Park Avenue
	 	 	 	San Jose, California 95134	 	 
	 

	 	New York, New York 10022-3598
	 	 	 	Telephone: (408) 522-3120	 	 
	 

	 	Telephone: (212) 836-8000
	 	 	 	Facsimile: (408) 522-3197	 	 
	 

	 	Facsimile: (212) 836-8689	 	 	 	 	 	 







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EXHIBIT “A”




UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK




	 	 	 	 	 
	 

SECURITIES AND EXCHANGE COMMISSION

	 	X

:	 	 
	 

	 	:	 	 
	Plaintiff,               

	 	:	 	 
	 

	 	:	 	 
	-against-

	 	:

:
	 	     Civil Action No.

     05-CV-8713 (NRB)

	WOOD RIVER CAPITAL MANAGEMENT, L.L.C., WOOD RIVER ASSOCIATES, L.L.C., JOHN
HUNTING WHITTIER, WOOD RIVER PARTNERS, L.P., and WOOD RIVER PARTNERS OFFSHORE, LTD.,

	 	:

:
:
:
	 	     ECF Case
	 

	 	:	 	 
	 
	Defendants.          

	 	 	 	 
	 


	 	X	 	 






Order Authorizing and Approving

Amended and Restated Settlement 

Agreement by and between Arthur Steinberg, as 

Court-Appointed Receiver for the Wood River Entities, 

and Endwave Corporation and the Sale of the Remaining Shares




          Arthur Steinberg, as court-appointed receiver (the “Receiver”) for Wood River
Partners, L.P., Wood River Partners Offshore, Ltd., Wood River Capital Management, L.L.C., and Wood
River Associates, L.L.C. (collectively, the “Wood River Entities”), having presented to the
Court for approval a certain Amended and Restated Settlement Agreement with Endwave Corporation
(“Endwave”), dated as of December 20, 2007 (the “Settlement Agreement”) (a copy of
which is annexed hereto as Exhibit “A”); and the Court having considered the Settlement Agreement
and any and all pleadings filed herein; and after due deliberation and sufficient cause appearing
therefor; it is




          ORDERED, that the Settlement Agreement is approved and ratified in all respects; and it is
further




 









 








          ORDERED, that the Receiver is authorized to execute and deliver the Settlement Agreement, and
to take any and all actions required to consummate the transactions contemplated thereby; and it is
further




          ORDERED, that the Receiver is authorized to execute and deliver the stock purchase agreement
(“Stock Purchase Agreement”) among the Wood River Entities and Endwave and, for the limited
purposes stated therein, the Receiver, and to take any and all actions required to consummate the
transactions contemplated thereby, including the sale of the shares of Endwave common stock covered
thereby for a purchase price of $6.83 per share; and it is further




          ORDERED, that the Receiver is authorized to enter into such other underwriting, placement,
ancillary and/or additional agreements with any third party that are necessary or appropriate for
the purpose of selling the Wood River Entities’ Remaining Shares (as defined in the Stock Purchase
Agreement) to third-party investors, including, but not limited to, the sale of the Remaining
Shares for a purchase price of $6.83 per share and to pay such necessary fees and expenses related
to such sales; and it is further




          ORDERED, that nothing set forth in this Order, the Settlement Agreement, Stock Purchase
Agreement or any other agreement respecting the purchase and sale of the Wood River Entities’
Endwave common stock is intended to or shall in any way alter or modify either the Preliminary
Injunction Order or the obligations of the parties to comply with all legal requirements, including
all applicable securities laws, rules and regulations; and it is further




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          ORDERED, that this Court shall retain exclusive jurisdiction with respect to all matters
related to or arising out of the Settlement Agreement, Stock Purchase Agreement, the Registration
Rights Agreement, any other agreement respecting the purchase and sale of the Wood River Entities’
Endwave common stock or this Order.





			
	Dated:	 	New York, New York

December ___, 2007





	 	 	 	 	 
	 

	 	 	 	 
	 

	 	Naomi Reice Buchwald

United States District Judge
	 	 






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