-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, M7CLHNRJxWwLZLfjj6/fx5LT0iTfgKx1gSzdq0xxRuUHg19M3kwEuPAeYuK+5UOo t3+z/L3O1lI/Mz78Ks8qeg== 0000950123-07-007891.txt : 20070524 0000950123-07-007891.hdr.sgml : 20070524 20070524164344 ACCESSION NUMBER: 0000950123-07-007891 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20070524 DATE AS OF CHANGE: 20070524 GROUP MEMBERS: ARTHUR STEINBERG, ESQ. GROUP MEMBERS: WOOD RIVER CAPITAL MANAGEMENT L.L.C. GROUP MEMBERS: WOOD RIVER PARTNERS OFFSHORE, LTD. GROUP MEMBERS: WOOD RIVER PARTNERS, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ENDWAVE CORP CENTRAL INDEX KEY: 0001118941 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 954333817 STATE OF INCORPORATION: DE FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-60995 FILM NUMBER: 07877439 BUSINESS ADDRESS: STREET 1: 130 BAYTECH DRIVE CITY: SAN JOSE STATE: CA ZIP: 95134 BUSINESS PHONE: (408)522-3100 MAIL ADDRESS: STREET 1: 130 BAYTECH DRIVE CITY: SAN JOSE STATE: CA ZIP: 95134 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WOOD RIVER ASSOCIATES,L.L.C. CENTRAL INDEX KEY: 0001334063 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O WOOD RIVER CAPITAL MANAGEMENT, LLC STREET 2: 44 MONTGOMERY STREET, SUITE 3700 CITY: SAN FRANCISCO STATE: CA ZIP: 94104 BUSINESS PHONE: 415-982-1001 MAIL ADDRESS: STREET 1: C/O WOOD RIVER CAPITAL MANAGEMENT, LLC STREET 2: 44 MONTGOMERY STREET, SUITE 3700 CITY: SAN FRANCISCO STATE: CA ZIP: 94104 SC 13D/A 1 y35279sc13dza.txt AMENDMENT NO. 3 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 3)(1) ENDWAVE CORPORATION (Name of Issuer) Common Stock (Title of Class of Securities) 29264A206 (CUSIP Number) ARTHUR STEINBERG, ESQ., SOLELY IN HIS CAPACITY AS THE RECEIVER AS DESCRIBED HEREIN, AND NOT IN HIS INDIVIDUAL CAPACITY, C/O KAYE SCHOLER LLP 425 PARK AVENUE NEW YORK, NEW YORK 10022 (212) 836-8000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 22, 2007 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. (1) The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 (the "Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP NO. 29264A206 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSONS: Wood River Capital Management, L.L.C. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS): (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY: - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS (SEE INSTRUCTIONS): AF - -------------------------------------------------------------------------------- 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E): : - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: -0- ----------------------------------------------------------------- NUMBER 8. SHARED VOTING POWER: OF SHARES BENEFICIALLY 2,122,176 OWNED BY ----------------------------------------------------------------- EACH 9. SOLE DISPOSITIVE POWER: REPORTING PERSON WITH -0- ----------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: 2,122,176 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 2,122,176 - -------------------------------------------------------------------------------- 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): 9 - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 18.3% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): IA, OO - -------------------------------------------------------------------------------- Page 2 of 17 Pages CUSIP NO. 29264A206 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSONS: Wood River Associates, L.L.C. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS): (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY: - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS (SEE INSTRUCTIONS): AF - -------------------------------------------------------------------------------- 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E): : - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: -0- ----------------------------------------------------------------- NUMBER 8. SHARED VOTING POWER: OF SHARES BENEFICIALLY 1,980,071 OWNED BY ----------------------------------------------------------------- EACH 9. SOLE DISPOSITIVE POWER: REPORTING PERSON WITH -0- ----------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: 1,980,071 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 1,980,071 - -------------------------------------------------------------------------------- 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): 9 - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 17.1% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): HC, OO - -------------------------------------------------------------------------------- Page 3 of 17 Pages CUSIP NO. 29264A206 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSONS: Wood River Partners, L.P. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS): (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY: - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS (SEE INSTRUCTIONS): WC - -------------------------------------------------------------------------------- 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E): : - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: 1,980,071 ----------------------------------------------------------------- NUMBER 8. SHARED VOTING POWER: OF SHARES BENEFICIALLY -0- OWNED BY ----------------------------------------------------------------- EACH 9. SOLE DISPOSITIVE POWER: REPORTING PERSON WITH 1,980,071 ----------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: -0- - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 1,980,071 - -------------------------------------------------------------------------------- 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): 9 - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 17.1% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): PN - -------------------------------------------------------------------------------- Page 4 of 17 Pages CUSIP NO. 29264A206 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSONS: Wood River Partners Offshore, Ltd. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS): (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY: - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS (SEE INSTRUCTIONS): WC - -------------------------------------------------------------------------------- 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E): : - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Cayman Islands - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: 2,122,176 ----------------------------------------------------------------- NUMBER 8. SHARED VOTING POWER: OF SHARES BENEFICIALLY -0- OWNED BY ----------------------------------------------------------------- EACH 9. SOLE DISPOSITIVE POWER: REPORTING PERSON WITH 2,122,176 ----------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: -0- - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 2,122,176 - -------------------------------------------------------------------------------- 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): 9 - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 18.3% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): CO - -------------------------------------------------------------------------------- Page 5 of 17 Pages CUSIP NO. 29264A206 - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSONS: Arthur Steinberg, Esq., solely as the Receiver of the Wood River Entities (as defined herein) and not in his individual capacity (1) I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY): - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS): (A) [ ] (B) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY: - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS (SEE INSTRUCTIONS): OO - -------------------------------------------------------------------------------- 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E): 9 - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: U.S.A. - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: -0- ----------------------------------------------------------------- NUMBER 8. SHARED VOTING POWER: OF SHARES BENEFICIALLY 4,102,247(1) OWNED BY ----------------------------------------------------------------- EACH 9. SOLE DISPOSITIVE POWER: REPORTING PERSON WITH -0- ----------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: 4,102,247(1) - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 4,102,247(1) - -------------------------------------------------------------------------------- 12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS): 9 - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 35.4%(1) - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): OO (Receiver) - -------------------------------------------------------------------------------- (1) See Introduction and Item 5 herein. Page 6 of 17 Pages INTRODUCTION On October 13, 2005, Arthur Steinberg, Esq. was appointed receiver of Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P., Wood River Partners Offshore, Ltd. and their respective subsidiaries, successors and assigns (collectively, the "Wood River Entities") pursuant to the Order described in Item 4. A Schedule 13D was previously filed with the Securities and Exchange Commission (the "Commission") on October 7, 2005 by the Wood River Entities and John H. Whittier purporting to reflect the acquisition and beneficial ownership of certain shares of Endwave Corporation by the Wood River Entities and Mr. Whittier as of such date (the "Existing Schedule 13D"). A Schedule 13D was filed by Arthur Steinberg, Esq., solely in his capacity as Receiver of the Wood River Entities and not in his individual capacity (the "Receiver"), and the Wood River Entities (collectively with the Receiver, the "Reporting Persons") on October 24, 2005, primarily to reflect that the Receiver may be deemed the beneficial owner of shares of Common Stock of Endwave Corporation due to being appointed Receiver and his duties and responsibilities as the Receiver (the "Original Schedule 13D"). On December 7, 2005, the Receiver and the Wood River Entities filed Amendment Number 1 to the Original Schedule 13D (the "First Amendment") to amend and restate the information in the Original Schedule 13D. On September 26, 2006, the Receiver and the Wood River Entities filed Amendment Number 2 to the Original Schedule 13D (the "Second Amendment") to amend and restate the information in the Original Schedule 13D and the First Amendment. This Amendment Number 3 to the Original Schedule 13D, the First Amendment and the Second Amendment (the "Third Amendment," and together with the Original Schedule 13D, the First Amendment and the Second Amendment, are collectively referred to herein as this "Schedule 13D") amends and restates in its entirety the Original Schedule 13D, the First Amendment and the Second Amendment and amends the information in the Existing Schedule 13D solely to the extent it relates to the Wood River Entities or the shares of Common Stock (as defined herein) of Endwave Corporation that may be deemed to be beneficially owned thereby. The Second Amendment was filed to correct the number and percentage of shares of Common Stock of Endwave Corporation that may be deemed to have been beneficially owned as of October 24, 2005 by the Reporting Persons from those set forth in the Original Schedule 13D and the First Amendment and the Existing Schedule 13D, based on additional information obtained by the Receiver since the date of the filing of the First Amendment, and to reflect the reduction of beneficial ownership of shares of Common Stock of Endwave Corporation in connection with the settlement of the Options (as defined and described in Item 6 hereof) by the Receiver. This Third Amendment is being filed to describe certain agreements entered into between Endwave Corporation and the Receiver pursuant to a Settlement Agreement and Registration Rights Agreement (as defined and described in Item 6 hereof). Since the date of the filing of the Original Schedule 13D (i.e., October 24, 2005), the Reporting Persons have not become the beneficial owner of any additional shares of Common Stock of Endwave Corporation or engaged in any transactions in the shares of Common Stock of Endwave Corporation (other than the reduction of beneficial ownership of shares of Common Stock of Endwave Corporation in connection with the settlement of the Options (as defined and described in Item 6 hereof) by the Receiver). Mr. Whittier is not a Reporting Person with respect to this Schedule 13D and the information contained herein relating to him is solely based on the information contained in the Existing Schedule 13D. See Item 4. The Receiver is still in the process of determining and correcting the allocation of shares of Endwave Corporation Common Stock held by the Wood River Entities as of October 24, 2005 among the Wood River Entities. The Receiver is in the process of confirming and verifying certain of the other facts and circumstances stated in this Schedule 13D, and therefore, all statements made herein are made based upon the Receiver's current information and belief and subject to confirmation, correction, change and future amendment. The Receiver may be deemed to share beneficial ownership of the shares of Common Stock of Endwave Corporation reported herein due to being appointed the Receiver of the Wood River Entities pursuant to the Order described in Item 4. Item 1. Security and Issuer. This Schedule 13D relates to shares of common stock, par value $0.001 per share (the "Common Stock"), of Endwave Corporation, a Delaware corporation (the "Issuer"). The address of the principal executive office of the Issuer is 130 Baytech Drive, San Jose, CA 95134. Page 7 of 17 Pages Item 2. Identity and Background. The persons filing this statement and the persons enumerated in Instruction C of Schedule 13D and, where applicable, their respective places of organization, general partners, directors, executive officers and controlling persons, and the information regarding them, are as follows: (a) Wood River Capital Management, L.L.C. (the "Adviser"), Wood River Associates, L.L.C. (the "General Partner"), Wood River Partners, L.P. (the "Partnership"), Wood River Partners Offshore, Ltd. (the "Offshore Fund"), David Bree ("Bree"), Peter J. O'Dwyer ("O'Dwyer"), and Don Seymour ("Seymour," and collectively with Bree and Dwyer, the "Offshore Fund Directors"). This Schedule 13D is also being filed on behalf of Arthur Steinberg, Esq., solely in his capacity as the Receiver of the Wood River Entities, pursuant to the Order described in Item 4, and not in his individual capacity. (b) The business address of each Reporting Person, except the Offshore Fund and the Offshore Fund Directors is: c/o Kaye Scholer LLP 425 Park Avenue New York, New York 10022 The business address of the Offshore Fund is: c/o Campbell's Corporate Services P.O. Box 268GT Scotiabank Building, Georgetown Grand Cayman, Cayman Islands The business address of Bree and Seymour is: P.O. Box 31910 Ansbacher House George Town Grand Cayman, Cayman Islands The business address of O'Dwyer is: 26 Pembroke Street Upper Dublin 2, Ireland (c) Present principal occupation or employment of the Reporting Persons and the name, principal business and address of any corporation or other organization in which such employment is conducted: The Adviser was an investment adviser to the Offshore Fund and is the management company for the Partnership. The Partnership and the Offshore Fund were principally engaged in the business of making investments. The General Partner is the general partner of the Partnership. The business address of the Adviser, the Partnership, the Offshore Fund and the General Partner are set forth above. Page 8 of 17 Pages Bree's principal occupation is a Managing Director at dms Management Ltd., a company management firm, and his business address is set forth above. O'Dwyer's principal occupation is a Managing Director at Hainault Capital Limited, a business advisory company, and his business address is set forth above. Seymour's principal occupation is a Managing Director at dms Management Ltd., a company management firm, and his business address is set forth above. The Receiver's principal occupation is an attorney and partner at Kaye Scholer LLP, a law firm, and his business address is set forth above. (d), (e) During the last five years, none of the Wood River Entities have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). The Wood River Entities (and their officers, agents, servants, attorneys, successors-in-interest and certain others) are presently defendants in a civil proceeding (the "Action") in the United States District Court for the Southern District of New York as to which the Securities and Exchange Commission (the "Commission") is the plaintiff and Mr. Whittier is also a defendant. The Action has resulted in the Wood River Entities (and their officers, agents, servants, attorneys, successors-in-interest and certain others) becoming subject to a preliminary injunction (pending entry of a final judgment) enjoining future violations of and prohibiting and mandating activities subject to, Federal securities laws. See Item 4 and the Order that is an Exhibit hereto. Specifically, the Wood River Entities are preliminarily enjoined from violating, directly or indirectly: (1) . . . Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") [15 U.S.C. Sec. 78j(b)] and Rule 10b-5 promulgated thereunder [17 C.F.R. Sec. 240.10b-5], by using any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, in connection with the purchase or sale of any security: (a) to employ any device, scheme, or artifice to defraud; (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or (c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person; (2) . . . Section 17(a) of the Securities Act of 1933 [15 U.S.C. Sec. 77q(a)], by, in the offer or sale of any security using any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly: (a) to employ any device, scheme, or artifice to defraud; (b) to obtain money or property by means of any untrue statement of a material fact or any omission of a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or (c) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser; (3) . . . Section 13(d) of the Exchange Act [15 U.S.C. Sec. 78m(d)] and Rules 13d-1 and 13d-2 thereunder [17 C.F.R. Sec. 240.13d-1 and 240.13d-2] by failing to: (a) within ten days of acquiring beneficial ownership of more than five percent of any equity security registered pursuant to Section 12 of the Exchange Act: (i) file a complete and accurate schedule 13D with the Commission; and (ii) send to the issuer of such security, and each exchange where such security is traded, a statement describing the purchases and other information; or (b) amend a Schedule 13D if there is any material change in the beneficial ownership position in the security noted therein, or any other facts set forth in a previously filed Schedule 13D; [and] (4) . . . Section 16(a) of the Exchange Act [15 U.S.C. Sec. 78p(a)], and Rules 16a-2 and 16a-3 thereunder [17 C.F.R. Sec. 240.16a-2 and 240.16a-3], by failing to file timely with Page 9 of 17 Pages the Commission (and, if such security is registered on a national securities exchange, also with the exchange), as a direct or indirect beneficial owner of more than 10 percent of any class of any equity security (other than an exempted security) which is registered pursuant to Section 12 of the Exchange Act [15 U.S.C. Sec. 78l], or as a director or an officer of the issuer of such security: (a) at the time of the registration of such security on a national securities exchange or by the effective date of a registration statement filed pursuant to Section 12(g) of the Exchange Act [15 U.S.C. Sec. 78l(g)], or within ten days after becoming such a beneficial owner, director, or officer, a statement on Form 3 [17 C.F.R. Sec. 249.103], Initial Statement of Beneficial Ownership of Securities, of the amount of all equity securities of such issuer of which he is the beneficial owner; (b) within ten days after the close of each calendar month thereafter, if there has been a change in such ownership during such month, a statement on Form 4 [17 C.F.R. Sec. 249.104], Statement of Changes in Beneficial Ownership of Securities, indicating ownership at the close of the calendar month and such changes in ownership as have occurred during such calendar month; and (c) within forty-five days of the issuer's year-end, a statement on Form 5 [17 C.F.R. Sec. 249.105], Annual Statement of Beneficial Ownership of Securities, disclosing, among other things, all holdings and transactions that should have been, but were not, reported on Forms 3, 4, or 5 during the most recent fiscal year. In addition, the Adviser and the General Partner (and their officers, agents, servants, attorneys, successors-in-interest and certain others) are preliminarily enjoined (pending receipt of a final judgment) from: by use of the mails or any means or instrumentality of interstate commerce: (1) employing any device, scheme, or artifice to defraud; and/or (2) engaging in any act, practice or course of business which would operate as a fraud or deceit upon any client or prospective client, in violation of Section 206(1) and (2) of the Investment Advisers Act of 1940 [15 U.S.C. Sec. 80b-6(1) and (2)]. During the last five years, none of the Receiver or any of the Offshore Fund Directors have been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction which resulted in any of them becoming subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding any violation with respect to such laws. (f) The Adviser is a Delaware entity. The General Partner is a Delaware entity. The Partnership is a Delaware entity. The Offshore Fund is a Cayman Islands entity. Bree is a citizen of the United States. O'Dwyer is a citizen of Ireland. Seymour is a citizen of the Cayman Islands. The Receiver is a citizen of the United States. Item 3. Source and Amount of Funds and Other Consideration. See Item 4. The Receiver may be deemed to share beneficial ownership of the shares of Common Stock reported herein due to being appointed the Receiver of the Wood River Entities pursuant to the Order. The Wood River Entities hold the shares of Common Stock reported herein. See Item 5. Item 4. Purpose of Transaction. Page 10 of 17 Pages The Existing Schedule 13D stated that the Wood River Entities acquired the Common Stock for investment purposes. The Reporting Persons acknowledge that this Schedule 13D is incomplete. See the Introduction hereof. Nonetheless, subject to the Introduction hereof, they have filed the Original Schedule 13D, the First Amendment and the Second Amendment to avoid further delay in (i) correcting the amount of Common Stock that each of them currently believes it held as of October 24, 2005, based on additional information obtained by the Receiver since the date of the filing of the Second Amendment (i.e., September 26, 2006) (provided, however, that the allocation of shares of Common Stock held by the Wood River Entities as of October 24, 2005 among the Wood River Entities remains subject to further review and possible correction), (ii) reflecting the reduction of beneficial ownership of shares of Common Stock in connection with the settlement of the Options (as described and defined in Item 6 hereof) by the Receiver and (iii) are filing this Third Amendment to reflect the entry by the Receiver on behalf of the Wood River Entities into a Settlement Agreement and a Registration Rights Agreement (as described and defined in Item 6 hereof). Pursuant to an order of the United States District Court for the Southern District of New York (the "Court"), dated October 13, 2005, in connection with the action entitled Securities and Exchange Commission v. 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. (the "Order"), Arthur Steinberg, Esq., was appointed as the Receiver of the Wood River Entities and granted the powers and authority described in the Order. Due to the powers and authority conveyed upon the Receiver by the Order, the Receiver may be deemed to share beneficial ownership of the shares of Common Stock reported herein. See Item 5. Pursuant to Section 13 of the Order, the Receiver is authorized, empowered and directed to perform, among others, the following duties and responsibilities at all times with a view towards, first, locating, preserving and protecting all of the Wood River Entities' assets, and second, maximizing returns to investors in the Wood River Entities: (i) locate and take immediate possession and control of all assets of every kind whatsoever and wherever located owned by, controlled by, belonging to, or traceable to the Wood River Entities, whether tangible, intangible, real, equitable, personal, realized, unrealized or otherwise (the "Assets"), and to hold, manage, and administer such Assets as is required to comply with and effectuate the directives of the Order; (ii) assume control of, and be named as authorized signatory for, all accounts at any bank, brokerage firm, or financial institution which has possession, custody or control of any Assets (the "Accounts"); (iii) manage, retain, sell and/or liquidate the Accounts as necessary and appropriate to comply with and effectuate the directives of the Order; (iv) take all reasonable and necessary actions to manage, maintain, and wind-down business operations of the Wood River Entities, including making legally required payments to creditors, employees and agents of the Wood River Entities; (v) communicate with vendors, investors, and others, as required to comply with and effectuate the purposes of the Order; (vi) make or authorize such payments and disbursements from the Assets, and incur, or authorize the incurrence of such expenses and make, or authorize the making of, such agreements as the Receiver deems reasonable and necessary in discharging the Receiver's duties; and (vii) develop a plan with respect to the retention, liquidation, and/or distribution of all remaining Assets to investors in the Wood River Entities. Accordingly, the Reporting Persons may from time-to-time (i) acquire additional shares of Common Stock (subject to availability at prices deemed favorable) in the open market, in privately negotiated transactions or otherwise, or (ii) dispose of shares of Common Stock at prices deemed favorable in the open market, in privately negotiated transactions or otherwise, in each case in accordance with applicable law. A copy of the Order was attached to the Original Schedule 13D and is hereby incorporated herein by this reference. As described in Item 6 below, the Issuer and the Receiver have entered into a Settlement Agreement, pursuant to which the Issuer and the Receiver have entered into a Registration Rights Agreement (as defined in Item 6 below) with respect to the Common Stock held by the Wood River Entities. Pursuant to the Registration Rights Agreement, if the Receiver elects to undertake an underwritten or registered direct offering, the Receiver is required to use his reasonable best efforts to take all reasonable actions, including to provide information relating to himself, the Wood River Entities, and the Common Stock, that are necessary to effectuate an underwritten or registered direct offering under the Registration Rights Agreement. Page 11 of 17 Pages Pursuant to the Registration Rights Agreement, the Issuer is required to cause a registration statement on Form S-3 (the "Registration Statement") relating to the Common Stock held by the Wood River Entities to be made effective and to take such action as is necessary to cause the Registration Statement to remain continuously effective for a period of one year from the date of effectiveness of the Registration Statement, (subject to extension under certain circumstances). Pursuant to the Registration Rights Agreement, the Issuer and the Receiver are each further required to engage a national investment bank and the Issuer is required to cooperate with the Receiver in effecting either an underwritten offering or a registered direct offering, at the Receiver's election, of the Common Stock held by the Wood River Entities. Each of these obligations of the Issuer pursuant to the Registration Rights Agreement will terminate upon the earlier of (i) the one year anniversary of the date of effectiveness of the Registration Statement and (ii) the date on which the Wood River Entities hold less than ten percent of the then-outstanding Common Stock of the Issuer. Except to the extent that the matters discussed in this Schedule 13D may be deemed a plan or proposal, none of the Reporting Persons has any plans or proposals which relate to, or could result in: (a) the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer or of any of its subsidiaries; (d) any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Issuer; (f) any other material change in the Issuer's business or corporate structure; (g) changes in the Issuer's charter, by-laws or instruments corresponding thereto or other actions that may impede the acquisition of control of the Issuer by any person; (h) causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (j) any action similar to any of those enumerated above. The Reporting Persons reserve the right to change their intentions with respect to all matters referred to in this Item 4. Item 5. Interest in Securities of the Issuer. (a) The Adviser may be deemed to beneficially own 2,122,176 shares of Common Stock, which constitute approximately 18.3% of the outstanding shares of Common Stock (based on 11,573,452 shares of Common Stock outstanding as of April 27, 2007, according to the Issuer's most recent Form 10-Q filed May 8, 2007). The General Partner may be deemed to beneficially own 1,980,071 shares of Common Stock, which constitute approximately 17.1% of the outstanding shares of Common Stock (based on 11,573,452 shares of Common Stock outstanding as of April 27, 2007, according to the Issuer's most recent Form 10-Q filed May 8, 2007). The Partnership may be deemed to beneficially own 1,980,071 shares of Common Stock, which constitute approximately 17.1% of the outstanding shares of Common Stock (based on 11,573,452 shares of Common Stock outstanding as of April 27, 2007, according to the Issuer's most recent Form 10-Q filed May 8, 2007). The Offshore Fund may be deemed to beneficially own 2,122,176 shares of Common Stock, which constitute approximately 18.3% of the outstanding shares of Common Stock (based on 11,573,452 shares of Common Stock outstanding as of April 27, 2007, according to the Issuer's most recent Form 10-Q filed May 8, 2007). The Offshore Fund Directors may be deemed to beneficially own 2,122,176 shares of Common Stock, which constitute approximately 18.3% of the outstanding shares of Common Stock (based on 11,573,452 shares of Common Stock outstanding as of April 27, 2007, according to the Issuer's most recent Form 10-Q filed May 8, 2007). Pursuant to the Order described in Item 4, the Receiver may be deemed to beneficially own 4,102,247 shares of Common Stock, which constitute approximately 35.4% of the outstanding shares of Common Page 12 of 17 Pages Stock (based on 11,573,452 shares of Common Stock outstanding as of April 27, 2007, according to the Issuer's most recent Form 10-Q filed May 8, 2007). (b) The Adviser is an investment adviser of the Offshore Fund and may be deemed to have shared power to vote or to direct the vote and shared power to dispose or direct the disposition of 2,122,176 shares of Common Stock that may be deemed to be beneficially owned by the Offshore Fund, which constitute approximately 18.3% of the outstanding shares of Common Stock (based on 11,573,452 shares of Common Stock outstanding as of April 27, 2007, according to the Issuer's most recent Form 10-Q filed May 8, 2007). The General Partner is the general partner of the Partnership and may be deemed to have shared power to vote or to direct the vote and shared power to dispose or direct the disposition of the 1,980,071 shares of Common Stock that may be deemed to be beneficially owned by the Partnership, which constitute approximately 17.1% of the outstanding shares of Common Stock (based on 11,573,452 shares of Common Stock outstanding as of April 27, 2007, according to the Issuer's most recent Form 10-Q filed May 8, 2007). The Partnership has the sole power to vote or to direct the vote and the sole power to dispose or direct the disposition of the 1,980,071 shares of Common Stock, which constitute approximately 17.1% of the outstanding shares of Common Stock (based on 11,573,452 shares of Common Stock outstanding as of April 27, 2007, according to the Issuer's most recent Form 10-Q filed May 8, 2007). The Offshore Fund has the sole power to vote or to direct the vote and the sole power to dispose or direct the disposition of the 2,122,176 shares of Common Stock, which constitute approximately 18.3% of the outstanding shares of Common Stock (based on 11,573,452 shares of Common Stock outstanding as of April 27, 2007, according to the Issuer's most recent Form 10-Q filed May 8, 2007). The Offshore Fund Directors may be deemed to have the shared power to vote or to direct the vote and the shared power to dispose or direct the disposition of the 2,122,176 shares of Common Stock, which constitute approximately 18.3% of the outstanding shares of Common Stock (based on 11,573,452 shares of Common Stock outstanding as of April 27, 2007, according to the Issuer's most recent Form 10-Q filed May 8, 2007). The Receiver may be deemed to have shared power to vote or to direct the vote and shared power to dispose or direct the disposition of the 4,102,247 shares of Common Stock that may be deemed to be beneficially owned by the Wood River Entities, which constitute approximately 35.4% of the outstanding shares of Common Stock (based on 11,573,452 shares of Common Stock outstanding as of April 27, 2007, according to the Issuer's most recent Form 10-Q filed May 8, 2007). (c) On September 26, 2006, the settlement of the Options was completed by the Receiver, and the Partnership, the General Partner and the Receiver may no longer be deemed to be the beneficial owners of the 140,100 shares of Common Stock formerly covered thereby. See Item 6. (d) As of May 17, 2007, the Receiver, on behalf of the Wood River Entities, entered into the Settlement Agreement with the Company. See Item 6 See the Reporting Persons' response to Item 4. Arthur Steinberg, Esq. was appointed the Receiver for the Wood River Entities pursuant to the Order on October 13, 2005. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. The General Partner is the general partner of the Partnership pursuant to the Partnership's agreement of limited partnership. The Adviser is the manager of the Offshore Fund pursuant to an investment advisory agreement. The agreement of limited partnership gives the General Partner the authority, among other things, to invest the funds of the Partnership in the Common Stock, to vote and dispose of Common Stock and to file this Schedule on behalf of the Partnership. The investment advisory agreement gives the Adviser the authority, Page 13 of 17 Pages among other things, to invest the funds of the Offshore Fund in the Common Stock, to vote and dispose of Common Stock and to file this Schedule 13D on behalf of the Offshore Fund. Pursuant to the Partnership's agreement of limited partnership and the Adviser's investment advisory agreement with the Offshore Fund, the Adviser and the General Partner are entitled to allocations based on assets under management and realized and unrealized gains from the Partnership and the Offshore Fund, respectively. The General Partner and the Adviser are filing this Schedule 13D jointly with the other Reporting Persons, but not as a member of a group, within the meaning of Rule 13d-5(b) under the Exchange Act, except as hereinafter described, but each expressly disclaims membership in a group with any other person, other than (x) in the case of the General Partner, with the Partnership, and (y) in the case of the Adviser, the Offshore Fund. Each of the Receiver, the Partnership and the Offshore Fund is filing this Schedule 13D jointly with the other Reporting Persons, but not as a member of a group, and each expressly disclaims membership in a group (except as described above). In addition, the filing of this Schedule 13D on behalf of the Partnership or the Offshore Fund should not be construed as an admission that either of them is, and each of them disclaims that it is, the beneficial owner, as defined in Rule 13d-3 under the Exchange Act, of any of the securities covered by this Schedule 13D. For a description of the Order see Item 4. The Order was attached as an Exhibit to the Original Schedule 13D and is incorporated herein by this reference. On January 20, 2004, the Partnership entered into a Special Expiration Price Options Master Agreement (the "Options") with CDC Securities, as agent for CDC Derivatives, Inc. (collectively, "CDCS"). The Options had a stated expiration date of October 11, 2006. Pursuant to the Options, the Partnership had the right to exercise one or more special expiration price options on the terms and conditions set forth therein. The Options provided the Partnership with the right to acquire various securities, including 140,100 shares of Common Stock. These 140,100 shares of Common Stock were included within the number and percentage of the shares of Common Stock that may be deemed to be beneficially owned by the Partnership, the General Partner and the Receiver in the Original Schedule 13D and the First Amendment. On September 26, 2006, the Receiver completed the settlement of the Options in a transaction with CDCS. As a consequence, the Partnership, the General Partner and the Receiver may no longer be deemed to be the beneficial owner of the 140,100 shares of Common Stock formerly covered by the Options and such shares are no longer included within the number and percentage of shares of Common Stock which may be deemed to be beneficially owned by the Partnership, the General Partner or the Receiver. See Item 7. The Options were attached as an Exhibit to the Second Amendment and are incorporated herein by this reference. The Receiver and the Issuer have entered into a Settlement Agreement, dated as of May 17, 2007 (the "Settlement Agreement") in settlement of all claims by the Issuer against the Wood River Entities, including the claims asserted by the Issuer against the Wood River Entities pursuant to a claims procedure ordered by the Court in the Action. The Settlement Agreement was subject to approval of the Court and was approved by the Court on May 22, 2007. In the event the approval of the Court is overturned on appeal by a court of competent jurisdiction, each of the Settlement Agreement and the Registration Rights Agreement (as defined below) will terminate automatically. In connection with the Settlement Agreement, the Receiver, on behalf of the Wood River Entities, and the Issuer have also entered into a Registration Rights Agreement (the "Registration Rights Agreement"), pursuant to which the Issuer has agreed to file the Registration Statement with the Commission and at the Receiver's request, cooperate with the Receiver in an underwritten or registered direct offering of the shares of Common Stock held by the Wood River Entities. The registration rights granted under the Registration Rights Agreement terminate upon the earlier of one year after the date of effectiveness of the Registration Statement (subject to extension under certain circumstances) or the earliest date when the Wood River Entities hold in the aggregate less than 10% of the then-outstanding Common Stock of the Issuer. The Registration Rights Agreement provides that the Wood River Entities will pay all discounts and commissions or placement agent fees in connection with an offering pursuant to the Registration Rights Agreement. The Registration Rights Agreement further provides that the Wood River Entities will pay all other expenses incident to the Issuer's performance of the Registration Rights Agreement, including so-called "road show" expenses, subject to a cap of $750,000 of expenses related to an underwritten offering or $550,000 of expenses related to a registered direct offering, in either case such expenses to be payable in cash or, if mutually agreed by the Receiver and the Issuer, in Common Stock or a combination of cash and Common Stock. In the event the Receiver withdraws an offering pursuant to the Registration Rights Agreement prior to the time that the Wood River Entities hold in the aggregate less than 10% of the then-outstanding Common Stock, the Wood River Entities will pay within ten days the Issuer's accrued expenses pursuant to the Registration Rights Agreement Page 14 of 17 Pages (subject to the applicable cap), in cash or, in the Receiver's discretion, by a number of shares of Common Stock determined by reference to the average closing price of the Common Stock for the twenty days prior to such withdrawal. The Registration Rights Agreement provides that the Issuer will (i) prepare the draft Registration Statement on Form S-3 and the draft prospectus relating to the proposed resale of Common Stock included in the Registration Statement (the "Prospectus"), (ii) make the draft Registration Statement and draft Prospectus available to the Receiver and to underwriters or placement agents and their respective legal counsel, (iii) incorporate into the Registration Statement and Prospectus the comments reasonably proposed by the Receiver, underwriters or placement agents and their respective counsel, (iv) file the Registration Statement with the Commission, (v) cause the Registration Statement to be declared effective, (vi) once the Receiver requests an underwritten or registered direct offering, file the Prospectus with the Commission, (vii) file supplements to the Registration Statement or the Prospectus that are necessary to cause such Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein or in light of the circumstances under which they were made, not misleading, and (viii) use its reasonable best efforts to prevent a suspension order or to cause such suspension order to be withdrawn. The Issuer and the Receiver each have agreed to engage national investment banks and to cooperate with each other and such investment banks in effecting either an underwritten offering or a registered direct offering, at the Receiver's election, of the Common Stock held by the Wood River Entities. The Registration Rights Agreement provides that, upon the Receiver's election to undertake an underwritten offering or registered direct offering, the Receiver will use his reasonable best efforts to take all reasonable actions to effectuate an underwritten or registered direct offering that is requested by the Issuer and any underwriters or placement agents engaged for such an offering. The Registration Rights Agreement further provides that the Receiver will furnish to the Issuer information regarding himself, the Wood River Entities and the Common Stock as is reasonably required to make and keep effective the Registration Statement. Item 7. Material to be Filed as Exhibits. (a) Joint Filing Agreement, dated May _, 2007, among Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P., Wood River Partners Offshore, Ltd. and Arthur Steinberg, Esq. (b) Order of the United States District Court for the Southern District of New York, dated October 13, 2005 incorporated by reference to Exhibit 1 to the Schedule 13D filed with the Securities and Exchange Commission by Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P., Wood River Partners Offshore, Ltd. and Arthur Steinberg, Esq. on October 24, 2005. (c) Special Expiration Price Options Master Agreement, dated January 20, 2004, between Wood River Partners, L.P. and CDC Securities, as agent for CDC Derivatives, Inc. incorporated by reference to Exhibit 2 to the Amendment No. 2 to the Schedule 13D filed with the Securities and Exchange Commission by Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P., Wood River Partners Offshore, Ltd. and Arthur Steinberg, Esq. on September 26, 2006. (d) Settlement Agreement, dated as of May 17, 2007, by and between Arthur Steinberg, as 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., and Endwave Corporation. (e) Form of Registration Rights Agreement, between Arthur Steinberg, Esq., as Receiver for Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P. and Wood River Partners Offshore, Ltd., and Endwave Corporation. Page 15 of 17 Pages SIGNATURE Subject to the information set forth in the Introduction hereof, after reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. May 24, 2007 ARTHUR STEINBERG, ESQ., as the Receiver of the Wood River Entities, to the extent contemplated by the Order, but not in his individual capacity By: /s/ Arthur Steinberg ------------------------------------ Arthur Steinberg, as the Receiver of the Wood River Entities, to the extent contemplated by the Order, but not in his individual capacity Page 16 of 17 Pages INDEX TO EXHIBITS
Exhibit - ------- 1 Joint Filing Agreement, dated May 24, 2007, among Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P., Wood River Partners Offshore, Ltd. and Arthur Steinberg, Esq. 2 Settlement Agreement, dated as of May 17, 2007, by and between Arthur Steinberg, as 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. and Endwave Corporation. 3 Form of Registration Rights Agreement, between Arthur Steinberg, Esq., as Receiver for Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P. and Wood River Partners Offshore, Ltd., and Endwave Corporation.
Page 17 of 17 Pages EX-99.1 2 y35279exv99w1.txt JOINT FILING AGREEMENT EXHIBIT 1 Pursuant to Rule 13d-1(k) (1) under the Securities Exchange Act of 1934, the undersigned hereby agree that only one statement containing the information required by Schedule 13D (or any amendment thereof) need be filed on their behalf with respect to the beneficial ownership of any equity securities of Endwave Corporation or any subsequent acquisitions or dispositions of equity securities of Endwave Corporation by any of the undersigned. Dated: May 24, 2007 ARTHUR STEINBERG, ESQ., as the Receiver of Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P. and Wood River Partners Offshore, Ltd., to the extent contemplated by the Order dated October 13, 2005, entered in the Receivership case in the United States District Court for the Southern District of New York, and not in his individual capacity By: /s/ Arthur Steinberg ------------------------------------ Name: Arthur Steinberg Title: Receiver EX-99.2 3 y35279exv99w2.txt SETTLEMENT AGREEMENT Exhibit 99.2 SETTLEMENT AGREEMENT BY AND BETWEEN ARTHUR STEINBERG, AS COURT-APPOINTED RECEIVER FOR THE WOOD RIVER ENTITIES, AND ENDWAVE CORPORATION This Settlement Agreement (this "Agreement") is dated as of May 17, 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"). 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 alleges 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 certain of 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"); 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 2 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"), the Parties have 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 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 the entry of 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 to obtain the Approval Order and, if requested by the Receiver, Endwave shall file a joinder to the Receiver's application for entry of the Approval Order. Within one business day after the Approval Order is entered by the Court, the Parties shall execute this Agreement and deliver executed signature pages to one another. (b) This Agreement shall become effective (such date, the "Effective Date") on the third business day after the Approval Order has been entered on the docket by the Clerk of the Court in the SEC Action. If the Effective Date does not occur before June 15, 2007 (unless extended in writing by the Parties), or if the Approval Order entered by the Court is 3 reversed or vacated on appeal, then this Agreement shall be null and void, the Parties shall be restored to the status quo ante, and nothing herein shall be deemed an admission by any Party hereto. If the Approval Order is entered 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. 2. Upon the Effective Date, Endwave and the Receiver shall execute and deliver a registration rights agreement in the form annexed hereto as Exhibit "B," or in such other form as the Parties hereto may mutually agree (the "Registration Rights Agreement") providing for the filing of a shelf registration statement on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), registering for resale all of the Endwave Shares. The Registration Rights Agreement is incorporated as if set forth in this Agreement in its entirety. 3. On the terms and subject to the conditions set forth in the Registration Rights Agreement, the Receiver shall (i) pay to the underwriters or placement agents to be engaged as contemplated by the Registration Rights Agreement all underwriting discounts and commissions or placement agent fees for the offering or placement and (ii) pay to Endwave the other reasonable and documented expenses incurred by Endwave relating to the offering or placement, including legal fees, accounting fees, printing fees and road show expenses up to a maximum of $550,000 in the case of a registered direct offering or $750,000 in the case of an underwritten offering (all of the foregoing amounts in clauses (i) and (ii) collectively, the "Offering or Placement Expenses"). The Offering or Placement Expenses shall be paid by the Receiver at such time as the Wood River Entities have sold at least a number (the "Minimum Number") of the Endwave Shares so that after giving effect to such sale the Wood River Entities 4 hold in the aggregate less than 10% of Endwave's outstanding common stock (the "Minimum Sale Date"); provided, however, that in the event the Company commences a registered direct offering or an underwritten offering pursuant to the Registration Rights Agreement but the Receiver subsequently terminates such offering or elects to sell fewer than the Minimum Number of shares in such offering, the Offering or Placement Expenses shall be paid promptly following the termination or closing of such offering, as applicable (the "Offering Termination Date"). The Offering or Placement Expenses may be paid (a) in cash or (b) if mutually agreed by Endwave and the Receiver, in Endwave Shares or a combination of cash and Endwave Shares; provided, however, that in the event the Company commences a registered direct offering or an underwritten offering pursuant to the Registration Rights Agreement but the Receiver subsequently terminates such offering, the Offering or Placement Expenses may be paid, at the Receiver's discretion, by returning to the Company such number of Endwave Shares as is obtained by dividing the Offering or Placement Expenses by the average closing price of Endwave common stock over the 20 trading days ending immediately prior to the date the Receiver notifies Endwave of his intent to terminate the offering. For the purposes of calculating whether the Minimum Number of Endwave Shares has been sold, unless otherwise notified by Endwave in writing, the Receiver shall be entitled to use the number of shares of outstanding common stock reported in Endwave's most recently-filed report on Form 10-K or 10-Q. 4. Solely in consideration for Endwave's release and settlement of its claims against the Wood River Entities, including, without limitation, the Endwave Filed Claim (including the Section 16(b) Claim), and in full and final satisfaction thereof, the Receiver, on behalf of the Wood River Entities, shall pay to Endwave cash in the amount of $425,000 for out-of-pocket expenses incurred by Endwave arising out of the Wood River Entities' accumulation 5 of Endwave common stock (the "Payment"). The Payment shall be made by the Receiver on the Minimum Sale Date; provided, however, that in the event the Company commences a registered direct offering or an underwritten offering pursuant to the Registration Rights Agreement but the Receiver subsequently terminates such offering or elects to sell fewer than the Minimum Number of shares in such offering, the Payment shall be made promptly following the Offering Termination Date. The Payment may be made (a) in cash or (b) if mutually agreed by Endwave and the Receiver, in Endwave Shares or a combination of cash and Endwave Shares; provided, however, that in the event the Company commences a registered direct offering or an underwritten offering pursuant to the Registration Rights Agreement but the Receiver subsequently terminates such offering, the Offering or Placement Expenses may be paid, at the Receiver's discretion, by returning to the Company such number of Endwave Shares as is obtained by dividing the Payment by the average closing price of Endwave common stock over the 20 trading days ending immediately prior to the date the Receiver notifies Endwave of his intent to terminate the offering. 5. Effective on the occurrence of either the Minimum Sale Date or the Offering Termination Date, 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") 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 6 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 date of this Agreement; provided however, that nothing herein shall release the Endwave Parties from any of their obligations under the terms of this Agreement and the Registration Rights Agreement. 6. Effective on the occurrence of either the Minimum Sale Date or the Offering Termination Date, 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 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 date of this Agreement; 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 and 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, 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 7 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 Payment and the Offering or Placement Expenses, Endwave shall withdraw with prejudice the Endwave Filed Claim. 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 approval by the Court. 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 conflict 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 and the Payment referred to in paragraph 4 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 constitutes the sole and entire agreement and understanding of the Parties hereto with respect to the subject matter of this Agreement and 8 supersedes all prior agreements, whether written or oral, with respect hereto. 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. 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. 9 NOTICE TO THE RECEIVER: NOTICE TO ENDWAVE: Arthur Steinberg, Esq. Mr. Edward A. Keible Phillip A. Geraci, Esq. President and Chief Executive Officer Emanuel Cherney, Esq. Endwave Corporation Kaye Scholer LLP 130 Baytech Drive 425 Park Avenue San Jose, California 95134 New York, New York 10022-3598 Telephone: (408) 522-3100 Telephone: (212) 836-8000 Facsimile: (408) 522-3197 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 10 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written. ARTHUR STEINBERG, AS RECEIVER ENDWAVE CORPORATION FOR THE WOOD RIVER ENTITIES By: /s/ Arthur Steinberg By: /s/ Edward A. Keible -------------------------------- -------------------------------- Arthur Steinberg, not individually but Mr. Edward A. Keible solely as the Receiver for the Wood President and Chief Executive Officer 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) 522-3100 Telephone: (212) 836-8000 Facsimile: (408) 522-3197 Facsimile: (212) 836-8689 11 EXHIBIT "A" UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - x SECURITIES AND EXCHANGE COMMISSION : : 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, : ECF Case L.P., and WOOD RIVER PARTNERS OFFSHORE, : LTD., : : Defendants. - - - - - - - - - - - - - - - - - - - - - - - - x ORDER AUTHORIZING AND APPROVING SETTLEMENT AGREEMENT BY AND BETWEEN ARTHUR STEINBERG, AS COURT-APPOINTED RECEIVER FOR THE WOOD RIVER ENTITIES, AND ENDWAVE CORPORATION 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 Settlement Agreement with Endwave Corporation ("Endwave"), dated as of May 17, 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 be, and the same hereby is, approved in all respects; and it is further ORDERED, that the Receiver is hereby 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 hereby authorized to execute and deliver the Registration Rights Agreement (as defined in 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 hereby authorized to enter into such underwriting, placement or similar agreements as are necessary or appropriate for purposes of completing the transactions contemplated by the Registration Rights Agreement and to pay such underwriting or placement commissions, fees or discounts, up to a maximum of 6% of the gross proceeds of any offering or placement, in connection with those transactions; and it is further ORDERED, that nothing set forth in this Order or the Settlement Agreement is intended to or shall in any way alter or modify the Preliminary Injunction Order or prejudice the rights of the SEC, and the SEC's rights are specifically and fully reserved; and it is further ORDERED, that this Court shall retain exclusive jurisdiction to construe and enforce this Order. Dated: New York, New York May ___, 2007 ------------------------------- Naomi Reice Buchwald United States District Judge 2EXHIBIT "B" EX-99.3 4 y35279exv99w3.txt REGISTRATION RIGHTS AGREEMENT Exhibit 99.3 REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (this "Agreement"), dated as of May 17, 2007, is made by and between Arthur Steinberg, solely in his capacity as receiver (the "Receiver") for Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P. and Wood River Partners Offshore, Ltd. (the "Wood River Entities"), and Endwave Corporation (the "Company"). RECITALS WHEREAS, the Company and the Receiver have entered into a Settlement Agreement, dated as of May 17, 2007 (the "Settlement Agreement"); WHEREAS, pursuant to the terms of the Settlement Agreement, the Company has agreed to enter into a registration rights agreement with respect to certain shares of Common Stock, par value $0.001 per share, of the Company ("Common Stock") held by the Wood River Entities; AGREEMENTS NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements contained herein and in the Settlement Agreement, and intending to be legally bound hereby, the parties hereto hereby agree as follows: Article I. Definitions For purposes of this Agreement, the following terms have the following meanings: "Agreement" has the meaning given to that term in the introductory paragraph hereof. "Anniversary Date" means the date one year following the date on which the Shelf Registration Statement becomes effective. "Approval Order" means the order of the Court granting the Receiver's application to approve the Settlement Agreement and related relief (Docket No. [_____]) or such other order or orders of the Court that approves this Agreement. "Business Day" means any day, other than a Saturday or Sunday, on which national banking institutions in New York, New York, are open. "Common Stock" has the meaning given to that term in the recitals hereto. "Company" has the meaning given to that term in the introductory paragraph hereof. "Court" means the United States District Court for the Southern District of New York having jurisdiction over the SEC Action. "Effective Date" means each effective date or deemed effective date under the Securities Act of the Shelf Registration Statement or any post-effective amendment thereto. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the SEC thereunder. "Extension Period" means a period, not to exceed 90 days, during which, in accordance with Article IV hereof, the Company is not required to effect the filing of the Shelf Registration Statement or is entitled to postpone the preparation, filing or effectiveness or suspend the effectiveness of the Shelf Registration Statement or the consummation of an Underwritten Offering or Registered Direct Offering. "Free Writing Prospectus" means a free writing prospectus as defined in Rule 405 under the Securities Act. "Issuer Free Writing Prospectus" means an issuer free writing prospectus as defined in Rule 433(h) under the Securities Act. "Lock-Up" has the meaning given to that term in Section 3.3(c) of this Agreement. "Lock-Up Period" has the meaning given to that term in Section 3.3(c) of this Agreement. "Minimum Number" means a number of shares of WR Common Stock to be sold such that, after giving effect to such sale, the Wood River Entities would beneficially hold in the aggregate less than 10% of the then-outstanding Common Stock. "NASD" has the meaning given to that term in Section 5.1(l) of this Agreement. "NASDAQ" means the NASDAQ Global Market. "Other Stockholders" means any Person (other than the Receiver or the Wood River Entities) having rights to demand or participate in a registration of Common Stock of the Company. "Person" means any individual, corporation, general or limited partnership, limited liability company, joint venture, trust or other entity or association, including without limitation any governmental authority. "Prospectus" means the prospectus relating to the proposed resale of WR Common Stock included in the Shelf Registration Statement, and any such prospectus as supplemented by any and all prospectus supplements and as amended by any and all amendments (including post-effective amendments) and including all material incorporated by reference or deemed to be incorporated by reference in such Prospectus. "Receiver" has the meaning given to that term in the introductory paragraph hereof. 2 "Registered Direct Offering" means an offering pursuant to the Shelf Registration Statement in which shares of WR Common Stock are sold in a negotiated trade in which one or more investment banking firms engaged for such purpose will attempt to sell the shares of WR Common Stock as agent but may position and resell a portion of the block as principal to facilitate the transaction. "Registration Expenses" has the meaning given to that term in Section 5.3(a) of this Agreement. "Required Period" means, with respect to the Shelf Registration Statement, the period beginning on date on which the Shelf Registration Statement becomes effective and ending on the earlier of (a) the Anniversary Date, as such period may be extended pursuant to Section 3.2(b), Article IV or Section 5.2 and (b) the date on which the Wood River Entities have sold at least the Minimum Number of shares of WR Common Stock. "Rule 144" means Rule 144 promulgated under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. "SEC" means the United States Securities and Exchange Commission and any successor United States federal agency or governmental authority having similar powers. "SEC Action" means the action captioned Securities and Exchange Commission v. Wood River Capital Management, L.L.C., et al., Civ. Action No. 05-CV-8713 (NRB), filed by the SEC against the Wood River Entities and John Hunting Whittier in the Court. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated by the SEC thereunder. "Settlement Agreement" has the meaning given to that term in the recitals hereto. "Shelf Registration Statement" means a shelf registration statement on Form S-3 to be filed by the Company pursuant to Rule 415 of the Securities Act relating to the offering and sale of shares of WR Common Stock pursuant to Article III hereof, including the related Prospectus, all amendments and supplements to such registration statement (including post-effective amendments), and all exhibits and all materials incorporated by reference or deemed to be incorporated by reference in such registration statement. "Underwritten Offering" means an offering pursuant to the Shelf Registration Statement in which shares of WR Common Stock are sold to one or more underwriters for reoffering to the public. "Wood River Entities" has the meaning given to that term in the introductory paragraph hereof. "WR Common Stock" means the shares of Common Stock that are held by the Wood River Entities and any additional shares of Common Stock received by the Wood River Entities by way of a stock dividend, stock split or distribution, or in connection with a combination of shares, recapitalization, reorganization, merger or consolidation, or otherwise. 3 Article II. Representations and Warranties of the Parties 2.1 Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Receiver as set forth below, as of the date hereof and as of each Effective Date: (a) Incorporation and Qualification. The Company has been duly organized and is validly existing and in good standing under the laws of the State of Delaware, with the requisite power and authority to own its properties and conduct its business as currently conducted. (b) Corporate Power and Authority. The Company has the requisite corporate power and authority to enter into, execute and deliver this Agreement and to perform its obligations hereunder. The Company has taken all necessary corporate action required for the due authorization, execution and delivery of this Agreement and the Company's performance of its obligations hereunder through and up to such Effective Date. (c) Execution and Delivery; Enforceability. This Agreement has been duly and validly executed and delivered by the Company, and constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. (d) No Conflict. The execution and delivery by the Company of this Agreement and compliance by the Company with all of the provisions hereof and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of, any of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result in the acceleration of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, or (ii) violate the Certificate of Incorporation or Bylaws of the Company. (e) Eligibility. To the Company's knowledge, the Company is eligible under the Securities Act and applicable regulations to use Form S-3 for the Shelf Registration Statement. 2.2 Representations and Warranties of the Receiver. The Receiver represents and warrants to, and agrees with, the Company as set forth below, as of the date hereof and as of each Effective Date: (a) Power and Authority. The Receiver has the requisite power and authority to enter into, execute and deliver this Agreement on his own behalf and on behalf of the Wood River Entities, to perform his obligations hereunder and to cause the Wood River Entities to perform their obligations hereunder. The Wood River Entities have taken all necessary corporate, partnership or limited liability company action required for the Receiver's due authorization, execution and delivery of this Agreement and the Receiver's and the Wood River Entities' performance of their obligations hereunder through and up to such Effective Date. 4 (b) Execution and Delivery; Enforceability. This Agreement has been duly and validly executed and delivered by the Receiver, and constitutes the valid and binding obligation of the Receiver and the Wood River Entities, enforceable against the Receiver and the Wood River Entities in accordance with its terms. (c) No Conflict. The execution and delivery by the Receiver of this Agreement and compliance by the Receiver and the Wood River Entities with all of the provisions hereof and the consummation of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of, any of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result in the acceleration of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Receiver or any of the Wood River Entities is a party or by which the Receiver or any of the Wood River Entities is bound or to which any of the property or assets of any of the Wood River Entities is subject, or (ii) violate the charter documents, partnership agreement or operating agreement of any of the Wood River Entities or any similar document governing any of the Wood River Entities. Article III. Shelf Registration 3.1 Shelf Registration Statement. Subject to the terms and conditions set forth in this Agreement, the Company shall use its reasonable best efforts to cause the Shelf Registration Statement to be filed with the SEC as promptly as practicable after the date hereof and use its reasonable best efforts to cause it to be declared effective by the SEC as promptly as practicable thereafter. The Company shall include in the Shelf Registration Statement a plan of distribution that includes possible distribution under an Underwritten Offering, a Registered Direct Offering and such other method of sale or distribution as is reasonably requested by the Receiver and not otherwise prohibited by this Agreement. 3.2 Continuous Effectiveness of Shelf Registration Statement. (a) The Company shall use its reasonable best efforts, and take all steps reasonably requested by the Receiver or any underwriters or placement agents selected pursuant to Section 3.3, to cause the Shelf Registration Statement to remain continuously effective, and not subject to any stop order, injunction or other similar order or requirement of the SEC, including the filing of any required amendments or supplements, until the expiration of the Required Period; provided, however, that if the Receiver has requested an Underwritten Offering or a Registered Direct Offering prior to the Anniversary Date, the Company shall cause the Shelf Registration Statement to remain continuously effective until such Underwritten Offering or Registered Direct Offering has been fully consummated; and provided further, however, that in no event shall such period of effectiveness expire prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 promulgated thereunder. (b) In the event of any stop order, injunction or other similar order or requirement of the SEC relating to the Shelf Registration Statement, the Required Period for such Shelf Registration Statement shall be extended by the number of days during which such stop order, injunction or similar order or requirement is in effect. 5 3.3 Underwritten or Registered Direct Offering. (a) In the event that the Receiver desires to engage in an Underwritten Offering or Registered Direct Offering, (i) the Receiver shall give written notice thereof to the Company, (ii) the Receiver shall with the consent of the Company (which consent shall not be unreasonably withheld) select an investment banking firm of national standing to be an underwriter or placement agent for the Underwritten Offering or Registered Direct Offering and (iii) the Company shall with the consent of the Receiver (which consent shall not be unreasonably withheld) select one or more investment banking firms of national standing to be an underwriter or underwriters or placement agent or agents for the Underwritten Offering or Registered Direct Offering as the case may be. Unless otherwise agreed to by the Receiver and the Company, the investment bank selected by the Receiver shall receive 50% of the aggregate underwriting commissions or placement fees from the Underwritten Offering or Registered Direct Offering, and the investment bank or investment banks selected by the Company shall receive, in the aggregate, 50% of the aggregate underwriting commissions or placement fees from the Underwritten Offering or Registered Direct Offering. Unless otherwise agreed to by the Receiver and the Company, the underwriter or placement agent chosen by the Receiver on the one hand and the Company on the other shall be joint bookrunners for the Underwritten Offering or Registered Direct Offering, with the underwriter or placement agent chosen by the Receiver to have 50% of the decision-making authority among the joint bookrunners. (b) If so requested by the underwriters for an Underwritten Offering or placement agents for a Registered Direct Offering, the Company, shall (i) not effect any underwritten public sale or distribution or registered direct offering, of any securities for its own account or the account of any Person not a party hereto that are the same as, or similar to, the WR Common Stock, or any securities convertible into, or exchangeable or exercisable for, any securities of the Company that are the same as, or similar to, the WR Common Stock, during a period (the "Lock-Up Period") beginning on the date of the initial due diligence or drafting session held pursuant to Section 5.1(i) in connection with such Underwritten Offering or Registered Direct Offering and ending not later than 90 days after the date of closing of the Underwritten Offering or Registered Direct Offering, provided, however, that if (1) during the last 17 days of the Lock-Up Period, the Company releases earnings results or announces material news or a material event or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 15-day period following the last day of the Lock-Up Period, then pursuant to Rule 2711(f)(4) of the NASD the Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the announcement of the material news or material event, as applicable and (ii) use its reasonable best efforts to cause its executive officers and directors and any beneficial owners of more than 10% of the issued and outstanding Common Stock to enter into a Lock-Up similar to that described in Section 3.3(c). (c) If so requested by the underwriters for any Underwritten Offering or the placement agents for any Registered Direct Offering, the Receiver on behalf of the Wood River Entities, shall agree with such underwriters (such agreement, a "Lock-Up"), that during the Lock-Up Period the Wood River Entities shall not sell or otherwise transfer or dispose of any shares of WR Common Stock, provided, however, that if (1) during the last 17 days of the Lock-Up Period, the Company releases earnings results or announces material news or a material event 6 or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 15-day period following the last day of the Lock-Up Period, then pursuant to Rule 2711(f)(4) of the NASD the Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the announcement of the material news or material event, as applicable. (d) The Receiver shall use his reasonable best efforts to take all actions reasonably requested by the Company and the underwriters for any Underwritten Offering or the placement agents for any Registered Direct Offering to effectuate such offering. The Receiver shall furnish to the Company such information regarding itself, the Wood River Entities and the WR Common Stock as shall be required or reasonably requested to effect the registration of the WR Common Stock, provided, however, that the Receiver and the Wood River Entities shall not be required to consummate any Underwritten Offering or Registered Direct Offering if the pricing under such Underwritten Offering or Registered Direct Offering would be unacceptable to the Receiver, in the Receiver's sole discretion. The Receiver, on his own behalf and that of the Wood River Entities, shall enter into and comply with an underwriting agreement or placement agency agreement, in usual and customary form, with the underwriters or placement agents in connection with such Underwritten Offering or Registered Direct Offering (provided, however, that in no event shall the Receiver or the Wood River Entities be obligated to enter into an underwriting or placement agency agreement that requires either the Receiver or the Wood River Entities to indemnify the Company). 3.4 Number of Offerings. Notwithstanding anything contained in this Article III to the contrary, the Receiver on behalf of the Wood River Entities shall be entitled to request only one offering hereunder, which may be either an Underwritten Offering or a Registered Direct Offering. For purposes hereof, neither an Underwritten Offering nor a Registered Direct Offering shall be considered consummated until at least the Minimum Number of shares of WR Common Stock have been sold pursuant to such Underwritten Offering or Registered Direct Offering or otherwise. 3.5 Termination. In the event that any person other than the Company, the Receiver or any of the Wood River Entities appeals the Approval Order and the Approval Order is reversed or vacated, then this Agreement shall terminate in all respects. If the Approval Order is entered 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. Article IV. Extension Period 4.1 Offering Extension Period. Notwithstanding any other provision of this Agreement to the contrary, if the Board of Directors of the Company determines in good faith that the registration and distribution of WR Common Stock would materially impede, delay or interfere with, or require premature disclosure of, any material acquisition, merger, corporate reorganization, or any negotiations, discussions or pending proposals with respect thereto involving the Company or any of its subsidiaries, then subject to Section 4.2, the Company shall be entitled to postpone or suspend the preparation, filing or effectiveness, of the Shelf 7 Registration Statement and/or the use of any Prospectus with respect to an Underwritten Offering or a Registered Direct Offering for a period not to exceed 90 days from the date of receipt of such written request from the Receiver, provided, however, that such request may be exercised by the Company no more than once. 4.2 Extension Period Certificate. The Company's right to an Extension Period pursuant to Section 4.1 is subject to the receipt by the Receiver of a certificate signed by the Chief Executive Officer of the Company certifying that the Board of Directors of the Company has made the determination referred to in Section 4.1. 4.3 Extension Period Limits. Notwithstanding anything contained in this Article IV to the contrary, the Company shall not be entitled to more than one Extension Period and in no event shall the Company be entitled to postpone or suspend the preparation, filing or effectiveness or suspend the effectiveness of the Shelf Registration Statement and/or the use of any resale Prospectus included in the Shelf Registration Statement pursuant to this Article IV unless it postpones or suspends during the Extension Period the effectiveness of any registration statements required pursuant to the registration rights of the Other Stockholders. In the event of the occurrence of any Extension Period during the Required Period, the Required Period shall be extended by the number of days during which such Extension Period is in effect. Article V. Procedures and Expenses 5.1 Registration Procedures. In connection with the Company's registration obligations pursuant to Article III, the Company shall use its reasonable best efforts to take such actions as are necessary or appropriate to permit the sale of the WR Common Stock by the Wood River Entities in accordance with plan of distribution set forth in the Shelf Registration Statement, and pursuant thereto the Company shall use its reasonable best efforts to, as promptly as reasonably practicable: (a) prepare and file with the SEC the Shelf Registration Statement; provided, however, that the Company shall (i) furnish to the Receiver and one firm of legal counsel selected by the Receiver, a sufficient time prior to the filing thereof with the SEC to afford to the Receiver and his counsel a reasonable opportunity for review, copies of the Shelf Registration Statement proposed to be filed, and (ii) reflect in the Shelf Registration Statement, when so filed with the SEC, such comments as the Receiver and its counsel may reasonably propose; (b) after the Receiver shall have requested an Underwritten or Registered Direct Offering in compliance with Section 3.3 and the underwriters or placement agents therefor have been selected in accordance with said Section, prepare and file with the SEC the Prospectus; provided, however, that the Company shall (i) furnish to the Receiver and one firm of legal counsel selected by the Receiver, and to the underwriters or placement agents selected pursuant to Section 3.3 and one firm of legal counsel selected by them, a sufficient time prior to the filing thereof with the SEC to afford to the Receiver, the underwriters or placement agents and their respective counsel a reasonable opportunity for review, copies of the Prospectus proposed to be filed, and (ii) reflect in the Prospectus, when so filed with the SEC, such 8 comments as the Receiver, such underwriter or placement agents and their respective counsel may reasonably propose; (c) furnish to the Receiver and the underwriters or placement agents such number of conformed copies of the Shelf Registration Statement and each amendment thereto, of the Prospectus and each supplement thereto, and of such other documents as they reasonably may request in writing from time to time; (d) subject to Section 3.2 and Article IV, prepare and file with the SEC any amendments and post-effective amendments to the Shelf Registration Statement as may be necessary and any supplements to the Prospectus as may be required or appropriate, in the view of the Company and its counsel, by the rules, regulations or instructions applicable to the Shelf Registration Statement or by the Securities Act to keep the Shelf Registration Statement effective until the termination of the Required Period (giving effect to any extensions thereof pursuant to Section 3.2(b), Section 4.3 or Section 5.2); (e) promptly following its gaining actual knowledge thereof (but in any event within two Business Days), notify the Receiver and (if selected) the underwriters or placement agents, in writing: (i) when a Shelf Registration Statement, Prospectus, Issuer Free Writing Prospectus or any supplement or amendment has been filed and, with respect to a Shelf Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other governmental authority for amendments or supplements to a Shelf Registration Statement, Prospectus or Issuer Free Writing Prospectus or for additional information; (iii) of the issuance by the SEC or any other governmental authority of any stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of any proceedings for that purpose; (iv) of the receipt by the Company of any written notification with respect to the suspension of the qualification or exemption from qualification of the WR Common Stock for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (v) of the occurrence of any event during the period the Shelf Registration Statement is effective that makes any statement made in the Shelf Registration Statement or the Prospectus or any Issuer Free Writing Prospectus untrue in any material respect or that requires the making of any changes in such Shelf Registration Statement, Prospectus or Issuer Free Writing Prospectus so that such Shelf Registration Statement, Prospectus or Issuer Free Writing Prospectus shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided, however, that no notice by the Company shall be required pursuant to this Section 5.1(e)(v) in the event that the Company either promptly files a Prospectus supplement to update the Prospectus or an appropriate Exchange Act report that is incorporated by reference into the Shelf 9 Registration Statement, that, in either case, contains the requisite information that results in the Shelf Registration Statement no longer containing any untrue statement of a material fact or omitting to state a material fact necessary to make the statements therein or in light of the circumstances under which they were made, not misleading); and (vi) of the Company's reasonable determination that a post-effective amendment to the Shelf Registration Statement would be required by applicable law (in which case the Company shall file the same as soon as practicable after such determination and use its reasonable best efforts to cause the same to become effective as soon as practicable following filing); (f) prevent the issuance of or obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any shares of the WR Common Stock for sale in any jurisdiction, at the earliest practicable date or, if any such order or suspension is made effective during any Extension Period, at the earliest practicable date after the Extension Period; (g) prior to any Underwritten Offering or Registered Direct Offering, use reasonable efforts to register or qualify, or cooperate with the Receiver, the underwriters or placement agents, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of the WR Common Stock for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as such counsel for the Receiver or the underwriters or placement agents reasonably requests in writing and do such other acts and things as may be reasonably necessary to maintain each such registration or qualification (or exemption therefrom) effective during the Required Period for the Shelf Registration Statement; provided, however, that the Company shall not be required to qualify generally to do business or as a dealer in securities in any jurisdiction in which it is not then so qualified or take any action which would subject it to general service of process or taxation in any jurisdiction in which it is not then so subject; (h) subject to Article IV, as promptly as reasonably practicable after the occurrence of any event contemplated by Sections 5.1(e)(v) or 5.1(e)(vi) hereof, use its reasonable best efforts to prepare (and furnish, subject to any notice by the Company in accordance with Section 5.1(e), to the Receiver on behalf of the Wood River Entities a reasonable number of copies of) a supplement or post-effective amendment to the Shelf Registration Statement or a supplement to the related Prospectus (including by means of an Issuer Free Writing Prospectus), or file any other required document so that, as thereafter delivered to the purchasers of the WR Common Stock being sold thereunder, such Prospectus or Issuer Free Writing Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (i) enter into and comply with an underwriting agreement or placement agency agreement, in usual and customary form, with the underwriters or placement agents, in connection with such Underwritten Offering or Registered Direct Offering (provided, however, that in no event shall the Company be obligated to enter into an underwriting or 10 placement agency agreement that requires the Company to indemnify the Receiver or the Wood River Entities; (i) after the Receiver shall have requested an Underwritten Offering or a Registered Direct Offering in accordance with Section 3.3, upon reasonable notice and at reasonable times during normal business hours, make reasonably available for inspection by a representative of the Receiver, one firm of counsel for the Receiver, the underwriters or placement agents, as applicable, if any, participating in any Underwritten Offering or Registered Direct Offering and their legal counsel and any single accounting firm retained by the Receiver or any such underwriter or placement agent, all financial and other records, pertinent corporate documents and properties of the Company, and cause the appropriate officers, directors and employees of the Company (x) to make reasonably available for such inspection all such relevant information reasonably requested by them in connection with the Underwritten Offering or Registered Direct Offering as is customary for "due diligence" investigations for an Underwritten Offering or a Registered Direct Offering, as applicable, and (y) to participate with such underwriters or placement agents, the Receiver, and their respective legal counsel and accountants in such due diligence and drafting sessions as are customary for such Underwritten Offering or Registered Direct Offering, as applicable; provided, however, that prior to providing any such information or materials, the Company and the Receiver shall have entered into a confidentiality agreement in a form reasonably acceptable to each of them; (j) comply with all applicable rules and regulations of the SEC relating to such registration and make generally available to its securityholders earning statements satisfying the provisions of Section 11(a) of the Securities Act, provided that the Company shall be deemed to have complied with this Section 5.1(j) if it has satisfied the provisions of Rule 158 under the Securities Act (or any similar rule promulgated under the Securities Act); (k) procure the cooperation of the Company's transfer agent in settling the sale of WR Common Stock in the Underwritten Offering or Registered Direct Offering; (l) provide such information as may be reasonably required for any filings required to be made by the Receiver, the Wood River Entities or underwriters or placement agents, if any, with the National Association of Securities Dealers, Inc. (the "NASD") in connection with the offering under the Shelf Registration Statement of the WR Common Stock (including, without limitation, such as may be required by NASD Rule 2710 or 2720), and, shall use reasonable best efforts to cooperate in connection with any filings required to be made with the NASD in that regard on or prior to the filing of the Shelf Registration Statement; and (m) assist the underwriters or placement agents, as applicable, in the marketing of the WR Common Stock in connection with an Underwritten Offering or Registered Direct Offering, as applicable, including without limitation, causing appropriate officers of the Company to attend "road shows" and analyst or investor presentations and such other selling or informational activities reasonably requested by the underwriters or placement agents and customary for an Underwritten Offering or a Registered Direct Offering, as applicable; provided, however, that the Company's obligations to cause its officers to attend "road shows" shall be limited to presentations in the United States and further limited, (i) in the case of an Underwritten Offering, to a road show with a duration of two weeks, and (ii) in the case of a 11 Registered Direct Offering, to a road show with a duration of one week, in each case plus such additional number of days as may be reasonably requested by the underwriters or placement agents. 5.2 Suspension of Disposition. (a) The Receiver agrees that, upon receipt of any written notice from the Company of the occurrence of any event of the type described in Sections 5.1(e)(ii), 5.1(e)(iii), 5.1(e)(iv), 5.1(e)(v) or 5.1(e)(vi), the Receiver and the Wood River Entities shall discontinue disposition of the shares of WR Common Stock covered by a Shelf Registration Statement, Prospectus or Free Writing Prospectus and suspend use of such Prospectus or Free Writing Prospectus until the Receiver receives copies of the supplemented or amended Prospectus contemplated by Section 5.1(h) or until is advised by the Company in writing that the use of the applicable Prospectus or Free Writing Prospectus may be resumed and have received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Free Writing Prospectus. In the event the Company shall give any such notice, the period of time for which the Shelf Registration Statement must remain effective pursuant to this Agreement shall be extended by the number of days during the time period from and including the date of the giving of such notice to and including the date when the Receiver has received (i) the copies of the supplemented or amended Prospectus or Issuer Free Writing Prospectus contemplated by Section 5.1(h) or (ii) the advice referenced in this Section 5.2(b). (b) The Receiver agrees that, upon receipt of the certificate from the chief executive officer of the Company contemplated by Section 4.2, the Wood River Entities shall discontinue disposition of the shares of WR Common Stock covered by a Shelf Registration Statement, Prospectus or Free Writing Prospectus and suspend use of such Prospectus or Free Writing Prospectus until the earlier to occur of the Receiver's receipt of (i) copies of a supplemented or amended Prospectus or Issuer Free Writing Prospectus and (ii)(A) written notice from the Company that the use of the applicable Prospectus or Issuer Free Writing Prospectus may be resumed and (B) copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Issuer Free Writing Prospectus. In the event the Company gives any such certificate contemplated by Section 4.2, the period of time for which the Shelf Registration Statement must remain effective pursuant to this Agreement shall be extended by the number of days during the time period from and including the date of giving of such notice to and including the date when the Receiver receives (i) the supplemented or amended Prospectus or Issuer Free Writing Prospectus or (ii) written notice from the Company that use of the applicable Prospectus or Issuer Free Writing Prospectus may resume. 5.3 Registration Expenses. (a) Subject to Section 5.3(c), all out-of-pocket fees and expenses incurred by the Company in complying with Article III and Section 5.1 ("Registration Expenses") shall be borne by the Wood River Entities. These fees and expenses shall include without limitation (i) all registration, filing and qualification fees, including fees for filings made with the SEC, NASDAQ and NASD, (ii) documented printing, duplicating and delivery expenses, 12 (iii) reasonable and documented fees and disbursements of one counsel for the Company (plus any other counsel of the Company from whom the underwriters or placement agents request "due diligence" materials or information or a legal opinion in connection with the offering), (iv) fees and expenses of complying with state securities or "blue sky" laws, (v) reasonable and documented fees and expenses of the independent certified public accountants of the Company pertaining specifically to the offering (including fees and expenses relating to any special audit or "comfort" letters required by or incident to the offering); (vi) fees and expenses in connection with quoting WR Common Stock on the NASDAQ or any other exchange or automated trading system on which the Company's Common Stock shall be listed or quoted, and (vii) documented "road show" expenses. The Registration Expenses may be paid (a) in cash or (b) if mutually agreed by Endwave and the Receiver, in WR Common Stock or a combination of cash and WR Common Stock; provided, however, that in the event the Company commences a Registered Direct Offering or an Underwritten Offering pursuant to this Agreement but the Receiver subsequently terminates such offering, the Registration Expenses may be paid, at the Receiver's discretion, by returning to the Company such number of WR Common Stock as is obtained by dividing the Registration Expenses by the average closing price of Endwave common stock over the 20 trading days ending immediately prior to the date the Receiver notifies Endwave of his intent to terminate the offering. (b) The obligations of the Wood River Entities to pay the amounts described in Section 5.3(a) are subject to the following caps: (i) in the case of an Underwritten Offering, $750,000.00, (ii) in the case of a Registered Direct Offering, $550,000.00. (c) Notwithstanding anything contained herein to the contrary, all underwriting and placement agent fees, discounts, selling commissions and stock transfer taxes applicable to the sale of the WR Common Stock shall be borne by the Wood River Entities. 5.4 Withdrawal of Offering. If the Receiver gives written notice pursuant to Section 3.3(a) that the Receiver wishes to engage in a Registered Direct Offering or Underwritten Offering, and subsequently determines that he wishes to terminate such offering, he shall promptly request in writing that the Company terminate its efforts with respect to such Registered Direct Offering or Underwritten Offering, and the Receiver shall pay to the Company within 10 days of written request from the Company, the Registration Expenses accrued prior to such written request in accordance with the "provided, however" clause of Section 5.3. Article VI. Free Writing Prospectuses Except for a Prospectus, an Issuer Free Writing Prospectus or other materials prepared by the Company, the Receiver represents and agrees that it (i) shall not make any offer relating to the WR Common Stock that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus, and (ii) has not distributed and will not distribute any written materials in connection with the offer or sale of WR Common Stock, in each case without the prior written consent of the Company and, in connection with any Underwritten Offering or Registered Direct Offering, the underwriters or the placement agents, as the case may be. The Company represents and agrees that it shall not make any offer relating to the WR Common Stock that would constitute an Issuer Free Writing Prospectus or that would otherwise 13 constitute a Free Writing Prospectus in connection with the offer or sale of WR Common Stock without the prior written consent of the Receiver, and, in connection with any Underwritten Offering or Registered Direct Offering, the underwriters or the placement agents, as the case may be. Article VII. Rule 144 With a view to making available the benefits of certain rules and regulations of the SEC which may permit the sale of WR Common Stock to the public without registration, the Company agrees to (a) use its reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; (b) upon written request of the Receiver, furnish to the Receiver promptly a written statement by the Company as to its compliance with the reporting requirements of Rule 144 and of the Securities Act and the Exchange Act, and such other reports and documents as the Receiver reasonably may request in availing itself of any rule or regulation of the SEC allowing the Wood River Entities to sell any shares of the WR Common Stock without registration; and (c) take such other actions as may be reasonably required by the Company's transfer agent to consummate any distribution of WR Common Stock that may be permitted in accordance with the terms and conditions of Rule 144. Article VIII. Limits on Sale 8.1 Limits on Sale. The Receiver and the Wood River Entities shall not sell, distribute or otherwise dispose of any of the WR Common Stock until the consummation of an Underwritten Offering or a Registered Direct Offering resulting in the sale of at least the Minimum Number of shares of WR Common Stock; provided, however, that this restriction shall not apply to public resales of WR Common Stock pursuant to Rule 144 under the Securities Exchange Act or to any transfer by any Wood River Entity to another Wood River Entity. The Receiver shall comply with all reporting requirements of the SEC with respect to any sale of WR Common Stock including, without limitation, filing any reports or amendments to reports required under Sections 13 and 16 of the Securities Exchange Act and will give a copy of each such report or amendment to the Company no later than the date and time such report or amendment is filed with the SEC or is required to be filed with the SEC, whichever comes first. Article IX. Miscellaneous 9.1 Notices. All notices and other communications in connection with this Agreement shall be in writing and shall be deemed given by (and shall be deemed to have been duly given) as follows: (i) at the time delivered by hand, if delivered personally; (ii) when sent via facsimile (with confirmation); (iii) five Business Days after being deposited in the mail, if sent postage prepaid, by registered or certified mail (return receipt requested); or (iv) on the next Business Day, if timely delivered to an express courier guaranteeing overnight delivery (with confirmation). Notices shall be directed to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): 14 (a) If to the Company: Endwave Corporation 130 Baytech Drive San Jose, California 95134 Attn: Chief Financial Officer Facsimile: (408) 522-3102 with a copy to: Jodie M. Bourdet, Esq. Cooley Godward Kronish LLP 101 California Street, 5th floor San Francisco, California 94111 Facsimile: (415) 693-2222 (b) If to the Receiver: Arthur J. Steinberg, Esq. Kaye Scholer LLP 425 Park Avenue New York, New York 10022 Facsimile: (212) 836-8689 with a copy to: Phillip A. Geraci, Esq. Kaye Scholer LLP 425 Park Avenue New York, New York 10022 Facsimile: (212) 836-8689 9.2 Survival. The representations, warranties, covenants, and agreements made herein shall survive any investigation made by the Receiver or the Company and the closing of the transactions contemplated hereby. 9.3 Severability. If any provision of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity and enforceability of the remaining provisions of this Agreement. 9.4 Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto. 9.5 Entire Agreement. This Agreement (including the documents and instruments referred to in this Agreement) constitutes the entire agreement of the parties and supersedes all prior agreements and understandings, whether written or oral, between the parties with respect to the subject matter of this Agreement. 15 9.6 Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the Company and the Receiver or in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege pursuant to this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right, power or privilege pursuant to this Agreement, nor shall any single or partial exercise of any right, power or privilege pursuant to this Agreement, preclude any other or further exercise thereof or the exercise of any other right, power or privilege pursuant to this Agreement. The rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies which any party otherwise may have at law or in equity. 9.7 Counterparts. This Agreement may be executed in any number of counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other party (including via facsimile or other electronic transmission), it being understood that each party need not sign the same counterpart. 9.8 Governing Law. This Agreement shall be governed in all respects by the laws of the State of New York without giving effect to principles of conflicts of law that would result in the application of the laws of a different jurisdiction. 9.9 Headings. The headings in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. 9.10 Specific Performance. The parties acknowledge and agree that any breach of the terms of this Agreement would give rise to irreparable harm for which money damages would not be an adequate remedy, and, accordingly, the parties agree that, in addition to any other remedies, each will be entitled to enforce the terms of this Agreement by a decree of specific performance without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting bond. 9.11 No Conflicting Rights. The Company shall not, on or after the date hereof, grant any registration or similar rights to any Person which conflict with or impair the rights granted hereby. [Signature Page Follows] 16 IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the date first written above. ENDWAVE CORPORATION By: ------------------------------------ Name: Title: ARTHUR J. STEINBERG, ESQ., solely in his capacity as the Receiver of Wood River Capital Management, L.L.C., Wood River Associates, L.L.C., Wood River Partners, L.P. and Wood River Partners Offshore, Ltd., and not in his individual capacity ------------------------------------------ Arthur J. Steinberg Receiver -----END PRIVACY-ENHANCED MESSAGE-----