EXHIBIT 10.9
NOTE PURCHASE AGREEMENT
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NOTE PURCHASE AGREEMENT (this "Agreement"), dated as of March 26, 2003,
between SPEEDCOM Wireless Corporation, a corporation organized under the laws of
the State of Delaware (the "Company"), and P-Com, Inc., a corporation organized
under the laws of the State of Delaware (the "Purchaser").
WHEREAS:
A. The Company and the Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D"), as promulgated by the United
States Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "Securities Act").
B. The Company desires to issue and sell, and the Purchaser desires to
purchase, upon the terms and conditions stated in this Agreement, a convertible
promissory note, in the form attached hereto as Exhibit A (the "Note"), in the
principal face amount of $400,000, which Note shall be convertible into shares
of the Company's common stock, par value $0.001 per share (the "Common Stock").
The shares of Common Stock issuable upon conversion of or otherwise pursuant to
the Note are referred to herein as the "Conversion Shares." The Note and the
Conversion Shares are collectively referred to herein as the "Securities" and
each of them are individually referred to herein as a "Security." This Agreement
and the Note are collectively referred to herein as the "Transaction Documents."
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
hereby agree as follows:
1. PURCHASE AND SALE OF SECURITIES.
(a) Purchase and Sale of Securities. Subject to the terms and
conditions hereof, at the Closing (as defined in Section 1(b) below), the
Company shall issue and sell to the Purchaser, and the Purchaser shall purchase
from the Company, a Note in the principal face amount equal to $400,000, in
consideration for the payment by the Purchaser of a purchase price equal to such
principal face amount (the "Purchase Price").
(b) The Closing. Subject to the satisfaction (or waiver) of the
conditions set forth in Sections 6 and 7 below, the closing of the transactions
contemplated hereby (the "Closing") shall take place at the offices of
Purchaser, on the date hereof, or at such other time or place as the Company and
the Purchaser may mutually agree (such date is hereinafter referred to as the
"Closing Date").
2. PURCHASER'S REPRESENTATIONS AND WARRANTIES. The Purchaser represents
and warrants to the Company as follows:
(a) Purchase for Own Account, Etc.. The Purchaser is acquiring the Note
for the Purchaser's own account and not with a present view towards the public
sale or distribution thereof, except pursuant to sales that are exempt from the
registration requirements of the Securities Act and/or sales registered under
the Securities Act. The Purchaser understands that the Purchaser must bear the
economic risk of this investment indefinitely, unless the Securities are
registered pursuant to the Securities Act and any applicable state securities or
blue sky laws or an exemption from such registration is available, and that the
Company has no present intention of registering the resale of any such
Securities other than as contemplated in Section 4(o). Notwithstanding anything
in this Section 2(a) to the contrary, by making the representations herein, the
Purchaser does not agree to hold the Securities for any minimum or other
specific term and reserves the right to dispose of the Securities at any time in
accordance with or pursuant to a registration statement or an exemption from the
registration requirements under the Securities Act.
(b) Accredited Investor Status. The Purchaser is an "Accredited
Investor" as that term is defined in Rule 501(a) of Regulation D under the
Securities Act.
(c) Reliance on Exemptions. The Purchaser understands that the
Securities are being offered and sold to the Purchaser in reliance upon specific
exemptions from the registration requirements of United States federal and state
securities laws and that the Company is relying upon the truth and accuracy of,
and the Purchaser's compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Purchaser set forth herein
in order to determine the availability of such exemptions and the eligibility of
the Purchaser to acquire the Securities.
(d) Information. The Purchaser or its counsel, if any, have been
furnished all materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Securities which
have been specifically requested by the Purchaser or its counsel. Neither such
inquiries nor any other investigation conducted by the Purchaser or its counsel
or any of its representatives shall modify, amend or affect the Purchaser's
right to rely on the Company's representations and warranties contained in
Section 3 below. The Purchaser understands that the Purchaser's investment in
the Securities involves a high degree of risk.
(e) Governmental Review. The Purchaser understands that no United
States federal or state agency or any other government or governmental agency
has passed upon or made any recommendation or endorsement of the Securities.
(f) Transfer or Resale. The Purchaser understands that (i) except as
provided in Section 4(o), the sale or resale of the Securities have not been and
are not being registered under the Securities Act or any state securities laws,
and the Securities may not be transferred unless (A) the transfer is made
pursuant to and as set forth in an effective registration statement under the
Securities Act covering the Securities; or (B) the Purchaser shall have
delivered to the Company an opinion of counsel (which opinion shall be in form,
substance and scope customary for opinions of counsel in comparable
transactions) to the effect that the Securities to be sold or transferred may be
sold or transferred pursuant to an exemption from such registration; or (C) sold
under and in compliance with Rule 144 promulgated under the Securities Act (or a
successor rule) ("Rule 144"); or (D) sold or transferred in accordance with
applicable securities laws to an affiliate of the Purchaser who agrees to sell
or otherwise transfer the Securities only in accordance with the provisions of
this Section 2(f) and who is an Accredited Investor; and (ii) neither the
Company nor any other person is under any obligation to register such Securities
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under the Securities Act or any state securities laws (other than as provided in
Section 4(o)). Notwithstanding the foregoing or anything else contained herein
to the contrary, the Securities may be pledged as collateral in connection with
a bona fide margin account or other lending arrangement, provided such pledge is
consistent with applicable laws, rules and regulations.
(g) Legends. The Purchaser understands that, until such time as the
Conversion Shares have been registered under the Securities Act (including
registration pursuant to Rule 416 thereunder) or otherwise may be sold by the
Purchaser under Rule 144(k), the certificates for the Conversion Shares shall
bear a restrictive legend in substantially the following form:
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or the securities laws of
any state of the United States or in any other jurisdiction. The
securities represented hereby may not be offered, sold or transferred
in the absence of an effective registration statement for the
securities under applicable securities laws unless offered, sold or
transferred pursuant to an available exemption from the registration
requirements of those laws.
The Company agrees that it shall, immediately prior to a registration
statement covering the Securities being declared effective, deliver to its
transfer agent an opinion letter of counsel, opining that at any time such
registration statement is effective, the transfer agent shall issue, in
connection with the issuance of the Conversion Shares, certificates representing
such Conversion Shares without the restrictive legend above, provided such
Conversion Shares are to be sold pursuant to the prospectus contained in such
registration statement. Upon receipt of such opinion, the Company shall cause
the transfer agent to confirm, for the benefit of the holders, that no further
opinion of counsel is required at the time of transfer in order to issue such
shares without such restrictive legend.
The legend set forth above shall be removed and the Company shall issue
a certificate without such legend to the holder of any Security upon which it is
stamped, if (unless otherwise required by state securities laws) (i) the sale of
such Security is registered under the Securities Act (including registration
pursuant to Rule 416 thereunder); (ii) such holder provides the Company with an
opinion of counsel, in form, substance and scope customary for opinions of
counsel in comparable transactions, to the effect that a public sale or transfer
of such Security may be made without registration under the Securities Act; or
(iii) such holder provides the Company with reasonable assurances that such
Security can be sold under Rule 144. In the event the above legend is removed
from any Security and thereafter the effectiveness of a registration statement
covering such Security is suspended or the Company determines that a supplement
or amendment thereto is required by applicable securities laws, then upon
reasonable advance written notice to the Purchaser the Company may require that
the above legend be placed on any such Security that cannot then be sold
pursuant to an effective registration statement or under Rule 144 and the
Purchaser shall cooperate in the replacement of such legend. Such legend shall
thereafter be removed when such Security may again be sold pursuant to an
effective registration statement or under Rule 144.
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(h) Authorization; Enforcement. This Agreement has been duly and
validly authorized, executed and delivered on behalf of the Purchaser and is a
valid and binding agreement of the Purchaser enforceable against the Purchaser
in accordance with its terms.
(i) Residency. The Purchaser is a corporation organized under the laws
of the State of Delaware, and its principal place of business is located within
the State of California.
The Purchaser's representations and warranties made in this Article 2
are made solely for the purpose of permitting the Company to make a
determination that the transactions contemplated hereby comply with applicable
U.S. federal and state securities laws and not for any other purpose. The
Company may not rely on such representations and warranties for any other
purpose.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as set forth in
the Company's Select SEC Documents (as defined in Section 3(f) below)
or on a Disclosure Schedule executed and delivered by the Company to
the Purchaser within five business days following the Closing in
accordance with Section 4(p) hereof (the "Disclosure Schedule"), the
Company represents and warrants to the Purchaser as follows:
(a) Organization and Qualification. The Company and each of its direct
or indirect subsidiaries (collectively, the "Subsidiaries") is a corporation
duly organized and existing in good standing under the laws of the jurisdiction
in which it is incorporated, and has the requisite corporate power to own its
properties and to carry on its business as now being conducted. The Company and
each of its Subsidiaries is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which the nature of
the business conducted by it makes such qualification necessary and where the
failure so to qualify has had or could reasonably be expected to have a Material
Adverse Effect. "Material Adverse Effect" means any material adverse effect on
(i) the Securities, (ii) the ability of the Company to perform its obligations
hereunder or under the other Transaction Documents or (iii) the business,
operations, properties, prospects, financial condition or results of operations
of the Company and its Subsidiaries, taken as a whole.
(b) Authorization; Enforcement. (i) The Company has the requisite
corporate power and authority to enter into and perform its obligations under
this Agreement and the other Transaction Documents, to issue and sell the Note
in accordance with the terms hereof and, to issue the Conversion Shares upon
conversion of the Note in accordance with the terms of such Note; (ii) the
execution, delivery and performance of this Agreement and the other Transaction
Documents by the Company and the consummation by it of the transactions
contemplated hereby and thereby (including, without limitation, the issuance of
the Note and the issuance and reservation for issuance of the Conversion Shares)
have been duly authorized by the Company's Board of Directors and no further
consent or authorization of the Company, its Board of Directors, or any
committee of the Board of Directors is required, and (iii) this Agreement
constitutes, and, upon execution and delivery by the Company of the other
Transaction Documents, such agreements will constitute, valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms. Neither the execution, delivery or performance by the Company of
this Agreement or the other Transaction Documents nor the consummation by it of
the transactions contemplated hereby or thereby (including, without limitation,
the issuance of the Note or the issuance or reservation for issuance of the
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Conversion Shares) requires any consent or authorization of the Company's
stockholders.
(c) Capitalization. The capitalization of the Company as of the date
hereof, including the authorized capital stock, the number of shares issued and
outstanding, the number of shares issuable and reserved for issuance pursuant to
the Company's stock option plans, the number of shares issuable and reserved for
issuance pursuant to securities (other than the Note) exercisable or
exchangeable for, or convertible into, any shares of capital stock and the
number of shares to be reserved for issuance upon conversion of the Note is set
forth in Section 3(c) of the Disclosure Schedule. All of such outstanding shares
of capital stock have been, or upon issuance in accordance with the terms of any
such warrants, options or preferred stock, will be, validly issued, fully paid
and non-assessable. No shares of capital stock of the Company (including the
Conversion Shares) are subject to preemptive rights or any other similar rights
of the stockholders of the Company or any liens or encumbrances. Except for the
Securities and as set forth in Section 3(c) of the Disclosure Schedule, as of
the date of this Agreement, (i) there are no outstanding options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or exercisable or
exchangeable for, any shares of capital stock of the Company or any of its
Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is
or may become bound to issue additional shares of capital stock of the Company
or any of its Subsidiaries, nor are any such issuances or arrangements
contemplated, and (ii) there are no agreements or arrangements under which the
Company or any of its Subsidiaries is obligated to register the sale of any of
its or their securities under the Securities Act (other than as provided in
Section 4(o)). Section 3(c) of the Disclosure Schedule sets forth all of the
Company issued securities or instruments containing antidilution or similar
provisions that will be triggered by, and all of the resulting adjustments that
will be made to such securities and instruments as a result of, the issuance of
the Securities in accordance with the terms of this Agreement or the Note.
Except for the Demand Notes (as defined in the Note), there are no outstanding
forms of indebtedness of the Company, secured by a security interest in all or a
portion of the Company's assets. The Company has furnished to the Purchaser a
true and correct copy of the Company's Certificate of Incorporation as in effect
on the date hereof ("Certificate of Incorporation"), the Company's Bylaws as in
effect on the date hereof (the "Bylaws"), and all other instruments and
agreements governing securities convertible into or exercisable or exchangeable
for capital stock of the Company.
(d) Issuance of Shares. The Note is duly authorized and, upon issuance
in accordance with the terms of this Agreement, will be validly issued and free
from all taxes, liens, claims and encumbrances (other than restrictions on
transfer contained in this Agreement or the Note) and will not be subject to
preemptive rights, rights of first refusal or other similar rights of
stockholders of the Company and will not impose personal liability on the
holders thereof. The Conversion Shares are duly authorized and reserved for
issuance, and, upon conversion of the Note in accordance with the terms thereof,
will be validly issued, fully paid and non-assessable, and free from all taxes,
liens, claims and encumbrances (other than restrictions on transfer contained in
this Agreement) and will not be subject to preemptive rights, rights of first
refusal or other similar rights of stockholders of the Company and will not
impose personal liability upon the holder thereof.
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(e) No Conflicts. The execution, delivery and performance of this
Agreement and the other Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby
(including, without limitation, the issuance and reservation for issuance, as
applicable, of the Note and Conversion Shares) will not (i) result in a
violation of the Certificate of Incorporation or Bylaws or (ii) conflict with,
or constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment (including, without limitation, the triggering of any anti-dilution
provisions), acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any of its Subsidiaries is a party, or result
in a violation of any law, rule, regulation, order, judgment or decree
(including United States federal and state securities laws and regulations and
rules or regulations of any self-regulatory organizations to which either the
Company or its securities are subject) applicable to the Company or any of its
Subsidiaries or by which any property or asset of the Company or any of its
Subsidiaries is bound or affected (except, with respect to clause (ii), for such
conflicts, defaults, terminations, amendments, accelerations, cancellations and
violations that have not had and could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect). Neither the
Company nor any of its Subsidiaries is in violation of its Certificate of
Incorporation, Bylaws or other organizational documents and neither the Company
nor any of its Subsidiaries is in default (and no event has occurred which, with
notice or lapse of time or both, would put the Company or any of its
Subsidiaries in default) under, nor has there occurred any event giving others
(with notice or lapse of time or both) any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or any of its Subsidiaries is a party. The businesses of the Company
and its Subsidiaries are not being conducted, and shall not be conducted so long
as the Purchaser owns the Note, in violation of any law, ordinance or regulation
of any governmental entity, except for possible violations the sanctions for
which either singly or in the aggregate have not had and could not reasonably be
expected to have a Material Adverse Effect. The Company and its Subsidiaries
possess all certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities which are material to conduct
its business, and neither the Company nor any of its Subsidiaries has received
any written notice of any proceeding relating to the revocation or modification
of any such certificate, authorization or permit. The Company and its board of
directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or other similar
anti-takeover provision under its Certificate of Incorporation or the laws of
the state of its incorporation which is or could become applicable to the
Purchaser as a result of the transactions contemplated by this Agreement,
including without limitation, the Company's issuance of the Securities and any
and all Purchaser's ownership of the Securities or the Purchaser's ownership of
the Common Stock. Except as specifically contemplated by this Agreement, the
Company is not required to obtain any consent, approval, authorization or order
of, or make any filing or registration with, any court or governmental agency or
any regulatory or self regulatory agency in order for it to execute, deliver or
perform any of its obligations under this Agreement or the other Transaction
Documents, in each case in accordance with the terms hereof or thereof.
(f) SEC Documents, Financial Statements. (i) From December 31, 1997 to
December 30, 2000, to the knowledge of the Company's officers after due inquiry,
and (ii) since December 31, 2000, the Company has timely filed (within
applicable extension periods) all reports, schedules, forms, statements and
other documents required to be filed by it with the SEC pursuant to the
reporting requirements of the Securities Exchange Act of 1934, as amended (the
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"Exchange Act") (all of the foregoing filed prior to the date hereof and all
exhibits included therein and financial statements and schedules thereto and
documents incorporated by reference therein, being hereinafter referred to
herein as the "SEC Documents"). As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Exchange Act or
the Securities Act, as the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a 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. None of the
statements made in any such SEC Documents is, or has been, required to be
amended or updated under applicable law (except for such statements as have been
amended or updated in subsequent filings made prior to the date hereof). As of
their respective dates, the financial statements of the Company included in the
SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
applicable with respect thereto. Such financial statements have been prepared in
accordance with U.S. generally accepted accounting principles ("GAAP"),
consistently applied during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto, or (ii) in the case
of unaudited interim statements, to the extent they may not include footnotes or
may be condensed or summary statements) and fairly present in all material
respects the consolidated financial position of the Company and its consolidated
Subsidiaries as of the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to immaterial year-end audit adjustments). Except as set
forth in the financial statements of the Company included in the Select SEC
Documents (as defined below), the Company has no liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to the date of such financial statements and (ii)
obligations under contracts and commitments incurred in the ordinary course of
business and not required under GAAP to be reflected in such financial
statements, which liabilities and obligations referred to in clauses (i) and
(ii), individually or in the aggregate, are not material to the financial
condition or operating results of the Company. As used in this Agreement, the
term "Select SEC Documents" shall mean the Company's (A) Proxy Statement for its
2002 Annual Meeting, (B) Annual Report on Form 10-K for the fiscal year ending
December 31, 2001, (C) Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30 and September 30, 2002, and (D) Current Reports on Form 8-K
filed since December 31, 2001.
(g) Absence of Certain Changes. Since December 31, 2001, there has been
no material adverse change and no material adverse development in the business,
properties, operations, prospects, financial condition or results of operations
of the Company and its Subsidiaries, taken as a whole. The Company has not taken
any steps, and does not currently expect to take any steps, to seek protection
pursuant to any bankruptcy or receivership law nor does the Company or any of
its Subsidiaries have any knowledge or reason to believe that its creditors
intend to initiate involuntary bankruptcy proceedings with respect to the
Company or any of its Subsidiaries.
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(h) Transactions With Affiliates. None of the officers, directors, or
employees of the Company is presently a party to any transaction with the
Company or any of its Subsidiaries (other than for ordinary course services
solely in their capacity as employees, officers or directors), including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any such officer, director or
employee or any corporation, partnership, trust or other entity in which any
such officer, director, or employee has an ownership interest of five percent or
more or is an officer, director, trustee or partner.
(i) Absence of Litigation. There is no action, suit, proceeding,
inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body (including, without limitation, the
SEC) pending or, to the knowledge of the Company or any of its Subsidiaries,
threatened against or affecting the Company, any of its Subsidiaries, or any of
their respective directors or officers in their capacities as such. There are no
facts which, if known by a potential claimant or governmental authority, could
give rise to a claim or proceeding which, if asserted or conducted with results
unfavorable to the Company or any of its Subsidiaries, could reasonably be
expected to have a Material Adverse Effect.
(j) Intellectual Property. Each of the Company and its Subsidiaries
owns or is duly licensed to use all patents, patent applications, trademarks,
trademark applications, trade names, service marks, copyrights, copyright
applications, licenses, permits, inventions, discoveries, processes, scientific,
technical, engineering and marketing data, object and source codes, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) and other similar rights and
proprietary knowledge (collectively, "Intangibles") necessary for the conduct of
its business as now being conducted. To the best knowledge of the Company,
neither the Company nor any Subsidiary of the Company infringes or is in
conflict with any right of any other person with respect to any Intangibles.
Neither the Company nor any of its Subsidiaries has received written notice of
any pending conflict with or infringement upon such third party Intangibles. The
termination of the Company's ownership of, or right to use, any single
Intangible could reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries has entered into any consent
agreement, indemnification agreement, forbearance to xxx or settlement agreement
with respect to the validity of the Company's or its Subsidiaries' ownership or
right to use its Intangibles and there is no reasonable basis for any such claim
to be successful. The Intangibles are valid and enforceable and no registration
relating thereto has lapsed, expired or been abandoned or canceled or is the
subject of cancellation or other adversarial proceedings, and all applications
therefor are pending and in good standing. The Company and its Subsidiaries have
complied, in all material respects, with their respective contractual
obligations relating to the protection of the Intangibles used pursuant to
licenses. No person is infringing on or violating the Intangibles owned or used
by the Company or its Subsidiaries.
(k) Title. The Company and its Subsidiaries have good and marketable
title in fee simple to all real property and good and merchantable title to all
personal property owned by them that is material to the business of the Company
and its Subsidiaries, in each case free and clear of all liens, encumbrances and
defects, except for such liens, encumbrances and defects as do not, individually
or in the aggregate, materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property
by the Company and its Subsidiaries. Any real property and facilities held under
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lease by the Company and its Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not materially interfere with the use made and proposed to be made of such
property and buildings by the Company and its Subsidiaries.
(l) Environmental Matters. There is no environmental litigation or
other environmental proceeding pending or threatened by any governmental
regulatory authority or others with respect to the current or any former
business of the Company or its Subsidiaries or any partnership or joint venture
currently or at any time affiliated with the Company or its subsidiaries. No
state of facts exists as to environmental matters or Hazardous Substances (as
defined below) that involves the reasonable likelihood of a material capital
expenditure by the Company or its Subsidiaries or that may otherwise have a
Material Adverse Effect. No Hazardous Substances have been treated, stored or
disposed of, or otherwise deposited, in or on the properties owned or leased by
the Company or its Subsidiaries or by any partnership or joint venture currently
or at any time affiliated with the Company or its Subsidiaries in violation of
any applicable environmental laws. The environmental compliance programs of the
Company and its Subsidiaries comply in all respects with all environmental laws,
whether federal, state or local, currently in effect. As used herein, "Hazardous
Substances" means any substance, waste, contaminant, pollutant or material that
has been determined by any governmental authority to be capable of posing a risk
of injury to health, safety, property or the environment.
(m) Disclosure. All information relating to or concerning the Company
and/or any Subsidiary or Subsidiaries set forth in this Agreement or provided to
the Purchaser pursuant to Section 2(d) hereof or otherwise in connection with
the transactions contemplated hereby is true and correct in all material
respects and the Company has not omitted to state any material fact necessary in
order to make the statements made herein or therein, in light of the
circumstances under which they were made, not misleading. No event or
circumstance has occurred or exists with respect to the Company or its
Subsidiaries or their respective businesses, properties, prospects, operations
or financial conditions, which has not been publicly disclosed but, under
applicable law, rule or regulation, would be required to be disclosed by the
Company in a registration statement filed on the date hereof by the Company
under the Securities Act with respect to a primary issuance of the Company's
securities.
(n) Acknowledgment Regarding Purchaser's Purchase of the Securities.
The Company acknowledges and agrees that the Purchaser is not acting as a
financial advisor or fiduciary of the Company (or in any similar capacity) with
respect to this Agreement or the transactions contemplated hereby, the
relationship between the Company and the Purchaser is "arms-length" and any
statement made by the Purchaser or any of its representatives or agents in
connection with this Agreement and the transactions contemplated hereby is
merely incidental to the Purchaser's purchase of Securities and has not been
relied upon by the Company, its officers or directors in any way. The Company
further acknowledges that the Company's decision to enter into this Agreement
has been based solely on an independent evaluation by the Company and its
representatives.
(o) Form SB-2 Eligibility. The Company is currently eligible to
register the resale of its Common Stock on a registration statement filed on
Form SB-2 under the Securities Act.
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(p) No General Solicitation. Neither the Company nor any distributor
participating on the Company's behalf in the transactions contemplated hereby
(if any) nor any person acting for the Company, or any such distributor, has
conducted any "general solicitation," as such term is defined in Regulation D,
with respect to any of the Securities being offered hereby.
(q) No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offers to
buy any security under circumstances that would require registration of the
Securities being offered hereby under the Securities Act or cause this offering
of Securities to be integrated with any prior offering of securities of the
Company for purposes of the Securities Act.
(r) No Brokers. The Company has taken no action which would give rise
to any claim by any person for brokerage commissions or finder's fees or for
similar payments by the Purchaser relating to this Agreement or the transactions
contemplated hereby.
(s) Acknowledgment Regarding Securities. The number of Conversion
Shares issuable upon conversion of the Note may increase in certain
circumstances. The Company's executive officers have studied and fully
understand the nature of the Securities being sold hereunder. The Company
acknowledges that its obligation to issue Conversion Shares upon conversion of
the Note in accordance with the terms of the Note is, other than as set forth in
the Note, absolute and unconditional, regardless of the dilution that such
issuance may have on the ownership interests of other stockholders and the
availability of remedies provided for in the Transaction Documents relating to a
failure or refusal to issue Conversion Shares. Taking the foregoing into
account, the Company's Board of Directors has determined in its good faith
business judgment that the issuance of the Note hereunder and the consummation
of the other transactions contemplated hereby are in the best interests of the
Company and its stockholders. The Company's Board of Directors and executive
officers fully intend to honor their obligations hereunder to issue Conversion
Shares upon conversion of the Note regardless of the dilution that such issuance
may have on the ownership interests of other stockholders and the availability
of remedies provided for in the Transaction Documents relating to their failure
or refusal to issue Conversion Shares.
4. COVENANTS.
(a) Best Efforts. The parties shall use their best efforts timely to
satisfy each of the conditions described in Sections 6 and 7 of this Agreement.
(b) Form D: Blue Sky Laws. The Company shall file with the SEC a Form D
with respect to the Securities as required under Regulation D and provide a copy
thereof to the Purchaser promptly after such filing. The Company shall, on or
before the Closing Date, take such action as the Company shall reasonably
determine is necessary to qualify the Securities for sale to the Purchaser
pursuant to this Agreement under applicable securities or "blue sky" laws of the
states of the United States or obtain exemption therefrom, and shall provide
evidence of any such action so taken to the Purchaser on or prior to the Closing
Date. Within two (2) trading days after the Closing Date, the Company shall file
a Form 8-K concerning this Agreement and the transactions contemplated hereby,
which Form 8-K shall attach this Agreement and its Exhibits as exhibits to such
Form 0-X (xxx "0-X Xxxxxx"). From and after the 8-K Filing, the Company hereby
acknowledges that the Purchaser shall not be in possession of any material
nonpublic information received from the Company, any of its Subsidiaries or any
of its respective officers, directors, employees or agents, that is not
disclosed in the 8-K Filing. The Company shall not, and shall cause each of its
Subsidiaries and its and each of their respective officers, directors, employees
and agents not to, provide the Purchaser with any material nonpublic information
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regarding the Company or any of its Subsidiaries from and after the 8-K Filing
without the express written consent of the Purchaser; provided, however, that if
the Purchaser exercises its rights under Section 4(m) it shall be deemed to have
given such express written consent. In the event of a breach of the foregoing
covenant by the Company, any of its Subsidiaries, or any of its or their
respective officers, directors, employees and agents, in addition to any other
remedy provided herein or in the other Transaction Documents, the Purchaser
shall have the right to make a public disclosure, in the form of a press
release, public advertisement or otherwise, of such material nonpublic
information without the prior approval by the Company, its Subsidiaries, or any
of its or their respective officers, directors, employees or agents. The
Purchaser shall not have any liability to the Company, its Subsidiaries, or any
of its or their respective officers, directors, employees, shareholders or
agents for any such disclosure. Subject to the foregoing, neither the Company
nor the Purchaser shall issue any press releases or any other public statements
with respect to the transactions contemplated hereby; provided, however, that
the Company shall be entitled, without the prior approval of the Purchaser, to
make any press release or other public disclosure with respect to such
transactions (i) in substantial conformity with the 8-K Filing and
contemporaneously therewith and (ii) as is required by applicable law and
regulations (provided that in the case of clause (i) the Purchaser shall be
consulted by the Company in connection with any such press release or other
public disclosure prior to its release).
(c) Reporting Status. So long as the Purchaser beneficially owns any of
the Securities, the Company shall timely file (within applicable extension
periods) all reports required to be filed with the SEC pursuant to the Exchange
Act, and the Company shall not terminate its status as an issuer required to
file reports under the Exchange Act even if the Exchange Act or the rules and
regulations thereunder would permit such termination.
(d) Use of Proceeds. The Company shall use the proceeds from the
issuance and sale of the Securities for general corporate purposes and working
capital. Such proceeds shall not be used to (i) pay dividends; (ii) pay for any
increase in executive compensation or make any loan or other advance to any
officer, employee, shareholder, director or other affiliate of the Company,
without the express approval of the Board of Directors acting in accordance with
past practice; (iii) purchase debt or equity securities of any entity (including
redeeming the Company's own securities), except for (A) evidences of
indebtedness issued or fully guaranteed by the United States of America and
having a maturity of not more than one year from the date of acquisition, (B)
certificates of deposit, notes, acceptances and repurchase agreements having a
maturity of not more than one year from the date of acquisition issued by a bank
organized in the United States having capital, surplus and undivided profits of
at least $500,000,000, (C) the highest-rated commercial paper having a maturity
of not more than one year from the date of acquisition, and (D) "Money Market"
fund shares, or money market accounts fully insured by the Federal Deposit
Insurance Corporation and sponsored by banks and other financial institutions,
provided that the investments consist principally of the types of investments
described in clauses (A), (B), or (C) above; or (iv) make any investment not
directly related to the current business of the Company.
-11-
(e) Financial Information. The Company shall send (via electronic
transmission or otherwise) the following reports to the Purchaser until the
Purchaser transfers, assigns or sells all of the Securities: (i) within ten (10)
days after the filing with the SEC, a copy of its Annual Report on Form 10-K,
its Quarterly Reports on Form 10-Q, its proxy statements and any Current Reports
on Form 8-K; and (ii) within one (1) day after release, copies of all press
releases issued by the Company or any of its Subsidiaries.
(f) Reservation of Shares. The Company shall at all times have
authorized and reserved for the purpose of issuance a sufficient number of
shares of Common Stock to provide for the full conversion of the outstanding
Note and issuance of the Conversion Shares in connection therewith to the extent
required by the Note.
(g) Listing. The Company shall promptly secure the listing of the
Conversion Shares upon each national securities exchange or automated quotation
system, if any, upon which shares of Common Stock become listed or quoted
(subject to official notice of issuance upon conversion of the Note) and shall
maintain, so long as any other shares of Common Stock shall be so listed or
quoted, such listing of all Conversion Shares from time to time issuable upon
the conversion of the Note. The Company shall comply in all material respects
with the reporting, filing and other obligations under the bylaws or rules of
any such national securities exchange or automated quotation system on which its
shares of Common Stock are listed or quoted. The Company shall promptly provide
to the holder of Note copies of any notices it receives regarding the continued
eligibility of the Common Stock for trading on any national securities exchange
or automated quotation system on which securities of the same class or series
issued by the Company are then listed or quoted, if any.
(h) Corporate Existence. So long as the Purchaser beneficially owns any
Securities, the Company shall maintain its corporate existence, and in the event
of a merger, consolidation or sale of all or substantially all of the Company's
assets, the Company shall ensure that the surviving or successor entity in such
transaction (i) assumes the Company's obligations hereunder and under the other
Transaction Documents and (ii) is a publicly traded corporation.
(i) No Integrated Offerings. The Company shall not make any offers or
sales of any security (other than the Securities) under circumstances that would
require registration of the Securities being offered or sold hereunder under the
Securities Act or cause this offering of the Securities to be integrated with
any other offering of securities by the Company for purposes of any stockholder
approval provision applicable to the Company or its securities.
(j) Legal Compliance. The Company shall conduct its business and the
business of its subsidiaries in compliance with all laws, ordinances or
regulations of governmental entities applicable to such businesses, except where
the failure to do so would not have a Material Adverse Effect.
(k) Redemptions and Dividends. So long as the Purchaser holds the Note,
the Company shall not, without first obtaining the written approval of the
Purchaser, repurchase, redeem or declare or pay any cash dividend or
distribution on any shares of capital stock of the Company.
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(l) Information. So long as the Purchaser holds the Note, the Company
shall furnish to the Purchaser:
(i) concurrently with the filing with the SEC of its annual
reports on Form 10-K, a certificate of the President, a Vice President
or a senior financial officer of the Company stating that, based upon
such examination or investigation and review of this Agreement as in
the opinion of the signer is necessary to enable the signer to express
an informed opinion with respect thereto, neither the Company nor any
of its Subsidiaries is or has during such period been in default in the
performance or observance of any of the terms, covenants or conditions
hereof, or, if the Company or any of its Subsidiaries shall be or shall
have been in default, specifying all such defaults, and the nature and
period of existence thereof, and what action the Company or such
Subsidiary has taken, is taking or proposes to take with respect
thereto; and
(ii) the information the Company must deliver to any holder or
to any prospective transferee of Securities in order to permit the sale
or other transfer of such Securities pursuant to Rule 144A of the SEC
or any similar rule then in effect.
The Company shall keep at its principal executive office a
true copy of this Agreement (as at the time in effect), and cause the
same to be available for inspection at such office during normal
business hours by any holder of Securities or any prospective
transferee of Securities designated by a holder thereof.
(m) Inspection of Properties and Books. So long as the Purchaser shall
beneficially own any Securities, the Purchaser and its representatives and
agents (collectively, the "Inspectors") shall have the right, at the Purchaser's
expense, to visit and inspect any of the properties of the Company and of its
Subsidiaries, to examine the books of account and records of the Company and of
its Subsidiaries, to make or be provided with copies and extracts therefrom, to
discuss the affairs, finances and accounts of the Company and of its
Subsidiaries with, and to be advised as to the same by, its and their officers,
employees and independent public accountants (and by this provision the Company
authorizes such accountants to discuss such affairs, finances and accounts,
whether or not a representative of the Company is present) all at such
reasonable times and intervals and to such reasonable extent as the Purchaser
may desire; provided, however, that each Inspector shall hold in confidence and
shall not make any disclosure (except to the Purchaser) of any such information
which the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, unless (i) the disclosure of such
information is necessary to avoid or correct a misstatement or omission in any
registration statement covering the Securities, (ii) the release of such
information is ordered pursuant to a subpoena or other order from a court or
government body of competent jurisdiction, or (iii) such information has been
made generally available to the public other than by disclosure in violation of
this or any other agreement. The Purchaser agrees that it shall, upon learning
that disclosure of such information is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt notice to the
Company and allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of, or to obtain a protective order for, the information
deemed confidential.
-13-
(n) Confidential Agreement. Except for any disclosure required by
applicable law or rules of the SEC, the Company and the Purchaser shall, and
shall direct its respective representatives to, hold in confidence all
information concerning this Agreement and the transactions contemplated hereby
until the earlier of such time as (i) the Company has made a public announcement
concerning the Agreement and the transactions contemplated hereby or (ii) this
Agreement is terminated.
(o) Registration Rights. Promptly following the Closing, the Company
and the Purchaser shall execute and deliver a registration rights agreement in
form customary for transactions of the type contemplated hereby, which
registration rights agreement shall provide the Purchaser with unlimited
piggyback registration rights and one demand registration right beginning one
hundred and eighty days after the Closing.
(p) Disclosure Schedule. Within five business days following the
Closing, the Company shall deliver to the Purchaser the Disclosure Schedule, in
form and substance satisfactory to the Purchaser in Purchaser's sole discretion.
5. TRANSFER AGENT INSTRUCTIONS.
(a) The Company shall instruct its transfer agent to issue certificates
(subject to the legend and other provisions hereof and in the Note), registered
in the name of the Purchaser or its nominee, for the Conversion Shares in such
amounts as specified from time to time by the Purchaser to the Company upon
conversion of the Note. To the extent and during the periods provided in
Sections 2(f) and 2(g) of this Agreement, all such certificates shall bear the
restrictive legend specified in Section 2(g) of this Agreement.
(b) The Company warrants that no instruction other than such
instructions referred to in this Section 5 and stop transfer instructions to
give effect to Section 2(f) hereof in the case of the transfer of the Conversion
Shares prior to registration of the Conversion Shares under the Securities Act
or without an exemption therefrom, shall be given by the Company to its transfer
agent and that the Securities shall otherwise be freely transferable on the
books and records of the Company as and to the extent provided in this
Agreement. Nothing in this Section shall affect in any way the Purchaser's
obligations and agreement set forth in Section 2(g) hereof to resell the
Securities pursuant to an effective registration statement or under an exemption
from the registration requirements of applicable securities law.
(c) If the Purchaser provides the Company and the transfer agent with
an opinion of counsel, which opinion of counsel shall be in form, substance and
scope customary for opinions of counsel in comparable transactions, to the
effect that the Securities have been sold or transferred pursuant to an
exemption from registration, or the Purchaser provides the Company with an
opinion of counsel, which opinion of counsel shall be in form, substance and
scope customary for opinions of counsel in comparable transactions, to the
effect that such Securities may be sold under Rule 144(k), the Company shall
permit the transfer and, in the case of the Conversion Shares, promptly instruct
its transfer agent to issue one or more certificates in such name and in such
denominations as specified by the Purchaser.
-14-
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Note to
the Purchaser and to otherwise consummate the transactions contemplated hereby
is subject to the satisfaction, at or before the Closing, of each of the
following conditions thereto, provided that these conditions are for the
Company's sole benefit and may be waived by the Company at any time in its sole
discretion.
(a) The Purchaser shall have executed this Agreement and delivered the
same to the Company.
(b) The Purchaser shall have delivered the amount of the Purchase Price
to the Company by wire transfer in accordance with the Company's written wiring
instructions.
(c) The representations and warranties of the Purchaser shall be true
and correct as of the date when made and as of the Closing Date as though made
at that time (except for representations and warranties that speak as of a
specific date, which representations and warranties shall be true and correct as
of such date), and the Purchaser shall have performed, satisfied and complied in
all material respects with the covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by the Purchaser at
or prior to the Closing Date.
(d) No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
7. CONDITIONS TO THE PURCHASER'S OBLIGATION TO PURCHASE. The obligation of
the Purchaser hereunder to purchase the Note from the Company and to
otherwise consummate the transactions contemplated hereby is subject to
the satisfaction, at or before the Closing Date, of each of the
following conditions, provided that such conditions are for the
Purchaser's sole benefit and may be waived by the Purchaser at any time
in the Purchaser's sole discretion:
(a) The Company shall have executed this Agreement and delivered
executed original copies of the same to the Purchaser.
(b) The Company shall have delivered to the Purchaser a duly executed
Note registered in the Purchaser's name.
(c) The representations and warranties of the Company shall be true and
correct as of the date when made and as of the Closing Date as though made at
that time (except for representations and warranties that speak as of a specific
date, which representations and warranties shall be true and correct as of such
date) and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Company at or prior
to the Closing Date.
-15-
(d) No statute, rule, regulation, executive order, decree, ruling,
injunction, action or proceeding shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction or
any self-regulatory organization having authority over the matters contemplated
hereby which questions the validity of, challenges or prohibits the consummation
of, any of the transactions contemplated by this Agreement.
(e) There shall have been no material adverse changes and no material
adverse developments in the business, properties, operations, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, since the date hereof, and no information, of
which the Purchaser is not currently aware, shall come to the attention of the
Purchaser that is materially adverse to the Company.
(f) The Purchaser shall have received a copy of resolutions, duly
adopted by the Board of Directors of the Company, which shall be in full force
and effect at the time of the applicable Closing, authorizing the consummation
by the Company of the transactions contemplated hereby and by the other
Transaction Documents, certified as such by the Secretary or Assistant Secretary
of the Company.
8. GOVERNING LAW; MISCELLANEOUS.
(a) Governing Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in the State of Delaware. The Company and the
Purchaser irrevocably consent to the jurisdiction of the United States federal
courts and the state courts located in the State of Delaware in any suit or
proceeding based on or arising under this Agreement and irrevocably agree that
all claims in respect of such suit or proceeding may be determined in such
courts. The Company irrevocably waives the defense of an inconvenient forum to
the maintenance of such suit or proceeding. The Company further agrees that
service of process upon the Company mailed by first class mail shall be deemed
in every respect effective service of process upon the Company in any such suit
or proceeding. Nothing herein shall affect the right of the Purchaser to serve
process in any other manner permitted by law. The Company agrees that a final
non-appealable judgment in any such suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on such judgment or in any other
lawful manner.
(b) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed execution page(s)
hereof to be physically delivered to the other party within five (5) days of the
execution hereof, provided that the failure to so deliver any manually executed
execution page shall not affect the validity or enforceability of this
Agreement.
(c) Construction. Whenever the context requires, the gender of any word
used in this Warrant includes the masculine, feminine or neuter, and the number
of any word includes the singular or plural. Unless the context otherwise
-16-
requires, all references to articles and sections refer to articles and sections
of this Agreement, and all references to schedules are to schedules attached
hereto, each of which is made a part hereof for all purposes. The descriptive
headings of the several articles and sections of this Agreement are inserted for
purposes of reference only, and shall not affect the meaning or construction of
any of the provisions hereof.
(d) Severability. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement or
the validity or enforceability of this Agreement in any other jurisdiction.
(e) Entire Agreement; Amendments. This Agreement and the other
Transaction Documents contain the entire understanding of the Purchaser, the
Company, their affiliates and persons acting on their behalf with respect to the
matters covered herein and therein and, except as specifically set forth herein
or therein, neither the Company nor the Purchaser makes any representation,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be waived other than by an instrument in writing signed by
the party to be charged with enforcement and no provision of this Agreement may
be amended other than by an instrument in writing signed by the Company and the
Purchaser.
(f) Notices. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally, by responsible overnight carrier or
by confirmed facsimile, and shall be effective five (5) days after being placed
in the mail, if mailed, or upon receipt or refusal of receipt, if delivered
personally or by responsible overnight carrier or confirmed facsimile, in each
case addressed to a party. The initial addresses for such communications shall
be as follows, and each party shall provide notice to the other parties of any
change in such party's address:
(i) If to the Purchaser:
P-Com, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with a copy simultaneously transmitted by like
means to (which transmittal shall not
constitute notice hereunder):
Xxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
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(ii) If to the Company:
SPEEDCOM Wireless Corporation
0000 Xxxxxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(g) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. Except as
provided herein, the Company shall not assign this Agreement or any rights or
obligations hereunder. The Purchaser may assign or transfer the Securities
pursuant to the terms of the Note and this Agreement, as applicable, or assign
the Purchaser's rights hereunder or thereunder to any other person or entity,
except for direct competitors of the Company or persons or entities that have
publicly announced plans to compete directly with the Company. In addition, and
notwithstanding anything to the contrary contained in this Agreement or the
other Transaction Documents, the Securities may be pledged and all rights of the
Purchaser under this Agreement or any other Transaction Document may be
assigned, without further consent of the Company, to a bona fide pledgee in
connection with the Purchaser's margin or brokerage account.
(h) Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
(i) Survival. The representations and warranties of the Company and the
agreements and covenants set forth in Sections 3, 4, 5 and 8 hereof shall
survive the Closing notwithstanding any due diligence investigation conducted by
or on behalf of the Purchaser. Moreover, none of the representations and
warranties made by the Company herein shall act as a waiver of any rights or
remedies the Purchaser may have under applicable U.S. federal or state
securities laws.
(j) Publicity. The Company and the Purchaser shall have the right to
approve before issuance any press releases, SEC filings, or any other public
statements with respect to the transactions contemplated hereby; provided,
however, that the Company shall be entitled, without the prior approval of the
Purchaser, to make any press release or SEC filings with respect to such
transactions as is required by applicable law and regulations (although the
Purchaser shall be consulted by the Company in connection with any such press
release and filing prior to its release and shall be provided with a copy
thereof).
(k) Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(l) Joint Participation in Drafting. Each party to this Agreement has
participated in the negotiation and drafting of this Agreement and the other
-18-
Transaction Documents. As such, the language used herein and therein shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party to
this Agreement.
(m) Equitable Relief. The Company acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to the Purchaser by
vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, the Company acknowledges that the remedy at law for a breach of its
obligations hereunder (including, but not limited to, its obligations pursuant
to Section 5 hereof) will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Agreement (including,
but not limited to, its obligations pursuant to Section 5 hereof), that the
Purchaser shall be entitled, in addition to all other available remedies, to an
injunction restraining any breach and requiring immediate issuance and transfer
of the Securities, without the necessity of showing economic loss and without
any bond or other security being required.
(n) Indemnification by Company. From and after the Closing, the Company
shall hold harmless and indemnify the Purchaser from and against, and shall
compensate and reimburse the Purchaser for, any damages (including reasonable
attorneys fees) which are directly or indirectly suffered or incurred by the
Purchaser or to which the Purchaser may otherwise become subject (regardless of
whether or not such damages relate to any third-party claim) and which arise
from or as a result of, or are directly or indirectly connected with any
inaccuracy in or breach of any of the Company's representations, warranties or
covenants set forth herein. In the event of the assertion or commencement by any
person of any claim or legal proceeding with respect to which the Purchaser may
have indemnification rights pursuant to this Section 8(n), the Purchaser shall
promptly notify the Company thereof in writing, but the failure to so notify the
Company will not limit the Purchaser's rights to indemnification hereunder,
except to the extent the Company demonstrates that the defense of such action is
prejudiced by the failure to so give such notice.
(o) Additional Acknowledgement. The Purchaser acknowledges that it has
independently evaluated the merits of the transactions contemplated by this
Agreement and the other Transaction Documents and that it has independently
determined to enter into the transactions contemplated hereby and thereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
SPEEDCOM WIRELESS CORPORATION
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Chief Financial Officer
P-COM, INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
