DEBT CONVERSION AGREEMENT
This Debt Conversion Agreement, dated as of December 10, 2003 (the
"Agreement"), is entered into by and among P-Com, Inc., a Delaware corporation
("P-Com"), SPEEDCOM Wireless Corporation, a Delaware corporation ("SPEEDCOM"),
North Sound Legacy Fund, LLC (formerly DMG Legacy Fund, LLC), North Sound Legacy
Institutional Fund LLC (formerly DMG Legacy Institutional Fund LLC), and North
Sound Legacy International Ltd. (formerly DMG Legacy International Ltd. )
(collectively, the "North Sound Funds")
WHEREAS, P-Com and SPEEDCOM have entered into that certain Asset Purchase
Agreement, dated as of June 16, 2003 (the "Asset Purchase Agreement"), pursuant
to which SPEEDCOM has agreed to sell, and P-Com has agreed to purchase,
substantially all of the assets of SPEEDCOM.
WHEREAS, pursuant to the Asset Purchase Agreement, P-Com is obligated to
assume $3,000,000 of SPEEDCOM's outstanding debt.
WHEREAS, SPEEDCOM currently owes the North Sound Funds an aggregate of
approximately $3,373,000 in outstanding principal and interest (the "SPEEDCOM
Debt") under a series of promissory notes previously issued by SPEEDCOM to the
North Sound Funds (the "SPEEDCOM Notes").
WHEREAS, P-Com desires to issue to the North Sound Funds new promissory
notes in the aggregate original principal amount of $3,000,000 (the "New
Notes"), in full satisfaction of its obligation to assume $3,000,000 of
SPEEDCOM's outstanding debt.
WHEREAS, in consideration for receiving the New Notes, the North Sound
Funds will cancel $3,000,000 of the SPEEDCOM Debt.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Issuance of New Note. Concurrently with the closing of the transactions
contemplated by the Asset Purchase Agreement (the "Closing"), P-Com will issue
the New Notes to the North Sound Funds. The New Notes shall (a) be in the
aggregate original principal amount of $3,000,000; (b) bear interest at the rate
of seven percent (7%) per annum; (c) have a maturity of 36 months; (d) be
convertible into a number of shares of P-Com's common stock equal to (x) the
outstanding principal amount thereunder plus all accrued and unpaid interest
thereon, divided by (y) $0.20 (as adjusted for stock splits, stock dividends or
similar occurrences); and (e) otherwise be in substantially the form attached
hereto as Exhibit A.
2. Cancellation of SPEEDCOM Debt. In consideration of receiving the New
Notes, the North Sound Funds shall cancel $3,000,000 of the SPEEDCOM Debt. The
balance of the SPEEDCOM Debt shall continue in full force and effect as a valid
and binding obligation of SPEEDCOM, to be repaid in accordance with the terms
thereof. Concurrently with the delivery of the New Notes to the North Sound
Funds, the North Sound Funds shall deliver to
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SPEEDCOM a written statement, signed by an officer or other duly authorized
representative of the North Sound Funds, confirming the cancellation of
$3,000,000 of the SPEEDCOM Debt (the "Confirmation"). As soon as reasonably
practicable following the Closing, the North Sound Funds shall also deliver to
SPEEDCOM the originals of those SPEEDCOM Notes that represent the canceled
SPEEDCOM Debt (the "Canceled Notes").
3. Satisfaction of P-Com's Obligation under Asset Purchase Agreement. Upon
SPEEDCOM's receipt of the Confirmation, P-Com's obligation to assume $3,000,000
of SPEEDCOM's outstanding debt, as set forth in Section 2.1 and Schedule 2.1 of
the Asset Purchase Agreement, shall be deemed to have been satisfied in full.
4. Representations and Warranties. Each of the parties hereto makes the
following representations and warranties to an in favor of each other, as of the
date hereof:
4.1 Power. Each of the parties hereto has full corporate power and
authority to execute and deliver this Agreement (and in the case of P-Com, the
New Notes) and to perform its obligations hereunder (and thereunder) and to
consummate the transactions contemplated hereby (and thereby).
4.2 Authority. The execution and delivery by each of the parties
hereto of this Agreement (and in the case of P-Com, the New Notes) and the
performance by such party of its obligations hereunder (and thereunder), have
been duly and validly authorized by all necessary corporate action. This
Agreement has been duly and validly executed and delivered by each of the
parties hereto and constitutes (and upon the execution and delivery of the New
Notes by P-Com, the New Notes will constitute) the legal, valid and binding
obligation of each such party enforceable against each such party in accordance
with its terms, subject to general principles of equity and to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement of applicable
creditors' rights and remedies.
5. Miscellaneous.
5.1 Entire Agreement. This Agreement contains the entire agreement
of the parties with respect to the subject matter hereof, and supersedes all
prior agreements, representation and warranties, written or oral, with respect
thereto.
5.2 Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof or thereof may
be waived, only by a written instrument signed by each of the parties hereto or,
in the case of a waiver, by the party waiving compliance. The failure of a party
to insist, in any one or more instances, upon performance of the terms or
conditions of this Agreement shall not be construed as a waiver or
relinquishment of any right granted hereunder or of the future performance of
any such term, covenant or condition. No waiver on the part of any party of any
right, power or privilege, nor any single or partial exercise of any such right,
power or privilege, shall preclude any further exercise thereof or the exercise
of any other such right, power or privilege.
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5.3 Governing Law. This Agreement shall be governed by and construed
in accordance with the substantive and procedural laws of the State of Delaware
applicable to agreements made and to be performed entirely within such State.
5.4 Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective permitted
successors and permitted assigns. No party to this Agreement may assign any of
its rights hereunder or delegate any of its obligations hereunder, in either
case, without the prior written consent of the other parties.
5.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be a original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement. Delivery of an executed counterpart of the signature
page to this Agreement by facsimile shall be as effective as delivery of a
manually executed counterpart of this Agreement.
5.6 Headings. The headings herein are for reference only and shall
not affect the interpretation of this Agreement.
5.7 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity in such jurisdiction without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
5.8 Mutual Drafting. The parties hereto are sophisticated and have
been represented by legal counsel throughout the transactions contemplated
hereto who have carefully negotiated the provisions hereof. As a consequence,
the parties do not intend that the presumptions set forth in laws or rules
relating to the interpretation of contracts against the drafter of any
particular clause should be applied to this Agreement and, therefore, waive
their effects.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
P-COM, INC., a Delaware corporation
By:
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Name:
Title:
SPEEDCOM WIRELESS CORPORATION,
a Delaware corporation
By:
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Name:
Title:
[NORTH SOUND]
By:
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Name:
Title:
