**Exhibit 10.44**

 

**SEVERANCE AGREEMENT**

 

This Severance Agreement (“Agreement”) is made and entered into as of August 1, 2003, by and between Powerwave Technologies, Inc.,(“Company”), and Kevin T. Michaels, an individual (“Chief Financial Officer”). 

 

**1.**RECITALS 

 

A. The Company is in the business of the design, manufacture, and marketing of advanced radio frequency (RF) power amplifiers for use in wirelesscommunication networks worldwide; 

 

B. Chief Financial Officerhas been serving as Chief Financial Officer of the Company, and the Company desires to continue its relationship with Chief Financial Officer; 

 

C. The Company desires to provide Chief Financial Officer with a severance agreement in recognition of Chief Financial Officer’s valuable skills andservice to be provided in the event of a termination of employment under the circumstances described below. 

 

NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, the parties hereto agree as follows: 

 

**2.**DEFINITIONS 

 

For purposes of this Agreement only, the following terms shall have the meaning describedbelow: 

 

A. “Employee” shall mean the Chief FinancialOfficer covered under this Agreement, unless otherwise specifically indicated. 

 

B. “Severance Pay” shall be two times the Chief Financial Officer’s ‘total annual compensation,’ as defined herein. ‘Total annual compensation’ as used herein shall be ChiefFinancial Officer’s annual base salary for the year employment terminates plus the greater of Chief Financial Officer’s target bonus amount for the year employment terminates or the actual bonus paid to Chief Financial Officer the prioryear, whichever is greater. 

 

C. “Cause” shall meanany of the following: 

 

(i) The continued,unreasonable refusal or omission by the Chief Financial Officer to perform any material duties required of him by the Company, if such duties are consistent with duties customary for the Chief Financial Officer’s position; 

 

(ii) Any material act or omission by the Chief FinancialOfficer involving malfeasance or gross negligence in the performance of his duties to, or material deviation from any of the policies or directives of the Company; 

 

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(iii) Conduct on the part of the Chief Financial Officer which constitutes the breach ofany statutory or common law duty of loyalty to the Company, including the unauthorized disclosure of material confidential information or trade secrets of the Company; or 

 

(iv) Any illegal act by Chief Financial Officer which materially and adversely affects the business of theCompany or any felony committed by Chief Financial Officer, as evidenced by conviction thereof, provided that the Company may suspend the Chief Financial Officer with pay while any allegation of such illegal or felonious act is investigated.

 

D. “Good Reason” shall mean any of the following,without the Chief Financial Officer’s written consent, but if Chief Financial Officer does not resign within nine (9) months of the occurrence of an event (i)-(vi) as listed below, Chief Financial Officer is deemed to have consented andacquiesced to the event which shall not thereafter constitute “good reason”: 

 

(i) A reduction by the Company in Chief Financial Officer’s compensation that is not made in connection with an across the boardreduction of all the Company’s executive salaries; 

 

(ii) A reduction by the Company of Chief Financial Officer’s benefits from those he was entitled to immediately prior to the resignation of employment that is not made in connection with an across the boardreduction of all the Company’s offered benefits; 

 

(iii) The failure of the Company to obtain an agreement from any successor to the Company, or purchaser of all or substantially all of the Company’s assets, to assume this Agreement; 

 

(iv) The assignment of Chief Financial Officer to dutieswhich reflect a material adverse change in authority, responsibility or status with the Company or any successor; 

 

(v) A relocation of Chief Financial Officer to a location more than 30 miles from the location where the Chief Financial Officer wasregularly assigned to immediately prior to the Chief Financial Officer’s resignation of employment; or 

 

(vi) A failure by the Company to pay any portion of the Chief Financial Officer’s compensation within ten (10) days of the date due.

 

E. “Change in Control” shall mean the occurrence ofany of the following events: 

 

(i) Theacquisition, directly or indirectly, by any person or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) of the beneficial ownership of more than fifty percent (50%) of the outstanding securities of theCompany; 

 

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(ii) A merger or consolidation in which the Company is not the surviving entity, exceptfor a transaction the principal purpose of which is to change the state in which the Company is incorporated; 

 

(iii) The sale, transfer or other disposition of all or substantially all of the assets of the Company; 

 

(iv) A complete liquidation or dissolution of the Company;or 

 

(v) Any reverse merger in which theCompany is the surviving entity but in which securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities are transferred to a person or persons different from the personsholding those securities immediately prior to such merger. 

 

**3.** ELIGIBILITY FOR SEVERANCE BENEFITS (RELEASE REQUIRED) 

 

Chief Financial Officer shall be entitled to receive the benefits set forth in Section 4 if all of the following occur: 

 

A. Chief Financial Officer’s employment is involuntarily terminated without “Cause” or if Chief Financial Officer voluntarily terminateshis employment with “Good Reason, in the absence of a “Change of Control”; 

 

B. Termination of Chief Financial Officer’s employment occurs in the absence of a Change in Control, and not in anticipation of, connection with, or within two (2) years following a “Change in Control,”as any benefits in such a situation are provided exclusively by the separate Change in Control Agreement executed by Chief Financial Officer on August 1, 2003. If termination of Chief Financial Officer’s employment is made in anticipation of,connection with, or within two (2) years following a “Change in Control,” then Chief Financial Officer shall be entitled only to those benefits provided for in Chief Financial Officer’s Change in Control Agreement and this Agreementshall not be applicable and shall be null and void and of no effect whatsoever; and 

 

C. Chief Financial Officer has executed a Release of Claims in favor of the Company and its agents, a form of which is available from Human Resources, and such Release must become effective in accordance with itsterms. 

 

**4.**SEVERANCE BENEFITS (RELEASEREQUIRED) 

 

A. SEVERANCE PAY 

 

If the Chief Financial Officer meets all of the eligibility requirements of Section 3 above,the Chief Financial Officer shall receive his Severance Pay, paid in a lump sum, fifteen (15) days after his employment terminates or fifteen (15) days after the Company’s receipt of the Chief Financial Officer’s execution of an unrevokedrelease, whichever is later. 

 

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B. COMPANY PAID COBRA 

 

The Company shall pay for existing group employee benefit coverage continuation under the Consolidated Omnibus Budget Reconciliation Act of1985 (“COBRA”) as provided by the Company’s group agreements for twenty-four (24) months, beginning the calendar month after Chief Executive Officer’s termination and provided at regular employee rates, or until Chief ExecutiveOfficer becomes eligible for group insurance benefits from another employer, whichever occurs first. If the full amount of time allowable under COBRA as applied by the California Continuation Benefits Replacement Act, California Health and SafetyCode § 1366.27 (“Cal-COBRA”) and the Company’s group health plan is less than twenty-four (24) months, then the Company shall pay for the cost of comparable coverage for the remainder of the 24-month period. Chief ExecutiveOfficer shall have an obligation to inform Company if he receives group coverage from another employer while receiving COBRA or continued medical coverage from the Company. Chief Executive Officer may not increase the number of designateddependants, if any, during this time unless Chief Executive Officer does so at his own expense in accordance with the applicable benefit Agreement. The period of such Company-paid COBRA coverage shall be considered part of Chief ExecutiveOfficer’s COBRA and Cal-COBRA coverage entitlement period, and may, for tax purposes, be considered income to the Chief Executive Officer. 

 

C. TAX LAW LIMITATIONS 

 

Notwithstanding any other provision in this Agreement to the contrary, to the extent that any of the payments and benefits provided for in this Agreement or otherwisepayable to the Chief Financial Officer are presumed by a taxing authority to constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986 as amended (“Code”), and the total paymentsprovided for in this Agreement exceed the amount triggering excise tax under the Code and but for this Section 4.C. would otherwise be presumed to be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), theparties agree to cooperate with each other under Paragraph 4.D. of the separate Change in Control Agreement executed by Chief Financial Officer on August 1, 2003. 

 

**5.** WITHHOLDING TAXES ON BENEFITS 

 

Notwithstanding any other provision of the Agreement, all severance benefits shall be reduced by any applicable federal, state, or local taxwithholding requirements and as permitted by law. 

 

**6.** NO OTHER SIMILAR BENEFITS 

 

Except as provided for herein,the severance benefits provided by the Agreement are in lieu of any other severance benefits provided by the Company under any other applicable agreement, practice or policy. This Severance Agreement expressly supercedes and makes inapplicable anyother severance agreement, practice, or policy related to severance benefits provided in the absence of a Change in Control. If there is a “Change in Control” as defined in Section 2.E above, the Change in Control Agreement executed byChief Financial Officer on August 1, 2003 alone shall govern Chief Financial Officer’s termination and severance benefits and this Agreement shall have no effect. 

 

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**7.**SET OFF/TERMINATION OF SEVERANCE BENEFITS 

 

No payments or benefits payable to the Chief Financial Officer pursuant to this Agreementshall be reduced by any amount the Chief Financial Officer may be entitled to receive as pension or retirement benefits, if any. 

 

Subsequent employment by the Company, or any Company successor or affiliates prior to the payment of severance benefits will disqualify Chief Financial Officer fromseverance benefits. 

 

**8.**DEATH

 

In the event Chief Financial Officer dies before the severance monies arepaid, payment shall be made to the designated beneficiary of the Chief Financial Officer in the same amount and at the same time that payment would have been made to the Chief Financial Officer. 

 

**9.** LIMITATION ON TRANSFERABILITY 

 

Except as provided in Section 8 above, the interest of the Chief Financial Officer in thebenefits described in this Agreement may not be sold, assigned, transferred or otherwise disposed of in any way, and any attempted sale, assignment, transfer or other disposition shall be null and void. If Chief Financial Officer attempts to sell,assign, transfer or otherwise encumber his or her rights or interest in the Agreement, other than as permitted by Section 8, such act will be treated as an election by the Chief Financial Officer to discontinue participation in the Agreement.

 

**10.** ARBITRATION 

 

Chief Financial Officer and the Company agree that any dispute or claim, including allcontract, tort, discrimination and other statutory claims, arising under or relating to benefits under this Agreement or related to Chief Financial Officer’s employment or termination of employment (“arbitrable claims”) shall beresolved by arbitration. HOWEVER, Chief Financial Officer and the Company agree that this arbitration provision shall not apply to any disputes or claims relating to or arising out of the misuse or misappropriation of trade secrets or proprietaryinformation. Arbitration shall be final and binding on the parties and shall be the exclusive remedy for arbitrable claims. Chief Financial Officer and the Company hereby waive any rights each may have to a jury trial in regard to the arbitrableclaims. Chief Financial Officer and the Company further agree that the arbitrator shall have the sole authority to determine arbitrability of any such arbitrable claims. Arbitration shall be conducted by the American Arbitration Association inOrange County, California (or other mutually agreed upon city) under the National Rules for the Resolution of Employment Disputes. As, in any arbitration, the burden of proof shall be allocated as provided by applicable law. The Company agrees topay the fees and costs of the arbitrator. However, the arbitrator shall have the same authority as a court to award equitable relief, damages, costs, and fees (excluding the costs and fees for the arbitrator) as provided by law for the particularclaims asserted. This arbitration clause shall be governed by and construed in all respects under the terms of the Federal Arbitration Act (“FAA”). 

 

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**11.** SETTLEMENT OF CLAIMS 

 

The Company’s obligation to make the payments provided for in this Agreement andotherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against the Chief Financial Officer orothers. 

 

**12.** SEVERABILITY 

 

If any term, provision, covenant or condition of this Agreement is held to be invalid,void, or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 

 

**13.** ENTIRE AGREEMENT; AMENDMENTS; WAIVER 

 

This Agreement, together with all stock option agreements and/or plans, any Employee SecrecyAgreements, and/or any Proprietary Information and Inventions Agreements, is the entire agreement between the parties hereto concerning the subject matter hereof and supersedes and replaces all prior or contemporaneous agreements or understandingsbetween the parties. This Agreement may not be amended or modified in any manner, except by an instrument in writing signed by the Chief Financial Officer and an officer of the Company as designated by the Board. Except with respect to “GoodReason” in Section 2.D, failure of either party to enforce any other provisions of this Agreement or any rights with respect thereto or failure to exercise any election provided for herein shall in no way be considered to be a waiver of suchprovisions, rights or elections, or in any way effect the validity of this Agreement, except for the deemed consent and acquiesce provided for in Section 2.D. The failure of either party to exercise any of the provisions, rights or elections in thisAgreement, except for those described in Section 2.D, shall not preclude or prejudice such party from later enforcing or exercising those same provisions, rights or elections which it may have under this Agreement. 

 

**14.** GOVERNING LAW 

 

This Agreement shall be governed by and construed in all respects in accordance with thelaws of the State of California or the FAA, as applicable. 

 

**15.** ATTORNEYS’ FEES 

 

In the eventof any action for the breach of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and expenses incurred in connection with such action. 

 

**16.**AT WILL EMPLOYMENT 

 

Nothing herein is intended to alter the at-will employment status of the Chief Financial Officer. Specifically, the Chief FinancialOfficer’s employment with the Company is “at-will.” Either the Company or the Chief Financial Officer may terminate his employment with or without cause or good reason, and with or without notice. In addition, the Company has theright to change the Chief Financial Officer’s compensation, duties, assignments and responsibilities or location of employment at any time, with or without cause or notice. 

 

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

 

“Chief Financial Officer”
   
“Company”
    
Powerwave Technologies, Inc.

By:
 
/s/ Kevin T. Michaels
   
By:
 
/s/ Andrew J. Sukawaty
  
Kevin T. Michaels
     
Andrew J. Sukawaty
      
Title:
 
Chairman, Compensation Committee

 

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