EXHIBIT 10.78
RELOCATION SERVICES AGREEMENT
THIS AGREEMENT is made effective as of this 8/th/ day of November, 1999 between
RELOACTION, a California corporation ("RELOACTION") and P-COM, INC. ("COMPANY").
IN CONSIDERATION of the mutual obligations, terms and conditions of this
AGREEMENT, the parties agree as follows:
1 Definitions.
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1.1 DIRECT COSTS. "DIRECT COSTS" shall mean actual costs related to
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services provided under applicable SUPPLEMENTS and more specifically
described in applicable SUPPLEMENTS.
1.2 EMPLOYEE. "EMPLOYEE" shall mean any person authorized by COMPANY to
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receive the SERVICES covered by this AGREEMENT.
1.3 SERVICES. "SERVICES" shall mean the employee relocation services
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provided to EMPLOYEES by RELOACTION in accordance with this AGREEMENT
and described in one or more SUPPLEMENTS to this AGREEMENT.
1.4 SERVICE PARTNER. "SERVICE PARTNER" shall mean service providers other
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than RELOACTION staff, selected and managed by RELOACTION to perform
specific services.
1.5 SUPPLEMENTS. "SUPPLEMENTS" shall mean the supplements to this
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AGREEMENT designated in Section 17 or subsequently designated as part
of this AGREEMENT which set forth the terms and conditions of the
specific SERVICES to be provided by RELOACTION for COMPANY.
2. Agreement to Provide SERVICES. COMPANY agrees to retain RELOACTION to
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provide, and RELOACTION agrees to provide, the SERVICES on the terms and
conditions of this AGREEMENT.
3. Fees and DIRECT COSTS.
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3.1 Fees and DIRECT COSTS related to SERVICES performed by RELOACTION
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shall be charged by RELOACTION and paid by COMPANY as specified in the
applicable SUPPLEMENT.
3.2 Payments. Except as provided in the applicable SUPPLEMENT, fees for
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SERVICES and DIRECT COSTS shall be due and payable by COMPANY within
thirty (30) days of receipt of invoice by COMPANY. Any income earned
on funds advanced to RELOACTION for the purpose of providing SERVICES
to COMPANY shall be the sole property of RELOACTION. Any fees paid
to RELOACTION by real estate brokers or other vendors in the course of
RELOACTION providing SERVICES shall be the sole property of
RELOACTION.
3.3 Late Payments. Payments not made when due shall accrue interest at
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the rate of 1.5% per month or the maximum rate permitted by California
law for nonexempt lenders, whichever is less.
4. Termination.
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4.1 Right to Terminate. Either party shall have the right to terminate
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any or all SERVICES under this AGREEMENT by giving written notice of
the termination to the other party at least thirty (30) days prior to
the effective date of the termination.
4.2 Effect of Termination. Upon termination of this AGREEMENT, RELOACTION
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shall complete the SERVICES authorized as of the effective date of the
termination. At the option of the COMPANY, COMPANY may assume full
responsibility for the terminated SERVICES. In the event of a
material default by COMPANY, RELOACTION may require COMPANY to assume
full responsibility for SERVICES.
4.3 Assumption of SERVICES by COMPANY. Upon any assumption of
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responsibility for SERVICES by COMPANY, (i) RELOACTION shall not be
responsible for providing any further SERVICES other than delivery of
active files to COMPANY; (ii) RELOACTION shall be held harmless by
COMPANY from any costs, expenses, or liability arising after the date
of the assumption; and (iii) COMPANY shall assume any contractual
obligations of RELOACTION, incurred in the ordinary course of
providing SERVICES, under contracts with third party purchasers of
EMPLOYEES' residences and with third party vendors retained to assist
in providing SERVICES. For each EMPLOYEE for which specific SERVICES
have commenced as of the termination, RELOACTION shall be entitled to
the fees as described in the applicable SUPPLEMENT(S) for such
SERVICES.
5. Responsibilities of the Parties. It is expressly understood and agreed
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that RELOACTION's sole responsibility is to perform the SERVICES described
herein by adhering to a standard of reasonable business care. If a claim,
demand, action, liability, suit, cause of action or the like (collectively
"DISPUTE") is asserted or made against RELOACTION or COMPANY as a result of
the rendering of such SERVICES, and provided such DISPUTE is not a result
of RELOACTION's failure to adhere to a standard of reasonable business
care, negligence, willful misconduct or dishonesty, COMPANY agrees to
defend, indemnify and hold RELOACTION harmless from such DISPUTE. In the
event of a DISPUTE arising from RELOACTION's failure to adhere to a
standard of reasonable business care, negligence, willful misconduct or
dishonesty, RELOACTION shall defend, indemnify and hold COMPANY harmless
from such DISPUTE. RELOACTION's liability shall be reduced by an amount
equal to the proportionate extent of any negligence on the part of the
COMPANY or any person receiving SERVICES hereunder. COMPANY and RELOACTION
acknowledge that the relationship between the parties requires a
cooperative effort, and each party agrees to keep the other promptly
informed of any situation and/or condition that may result in
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any DISPUTE being asserted and to reasonably cooperate with the other party
to achieve an equitable and just outcome in the event of a DISPUTE. The
provisions of this Section shall survive the termination of this AGREEMENT.
6. Notices. Any and all notices or other communications required or permitted
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by this AGREEMENT or by law to be served on or given to either party hereto
by the other party shall be in writing and shall be deemed duly served and
given when personally delivered to either of the parties to whom it is
directed, or in lieu of such personal service, three (3) business days
after being deposited in the United States mail, first class postage
prepaid, addressed to the parties at the addresses indicated on the
signature page of this AGREEMENT.
7. Audit of Records. RELOACTION will retain complete records of all
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transactions under this AGREEMENT for a period of at least three (3) years
from the date the SERVICES are completed for each EMPLOYEE. Such records
shall be available for audit by the COMPANY at its expense at the offices
of RELOACTION during regular business hours upon reasonable notice to
RELOACTION.
8. PROPRIETARY INFORMATION. The terms and conditions of this AGREEMENT,
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including the SUPPLEMENTS hereto, have been prepared by RELOACTION for the
sole use of COMPANY and constitutes proprietary information of RELOACTION
which is a valuable trade secret (the "PROPRIETARY INFORMATION"). COMPANY
agrees to maintain in confidence and shall not disclose to any person or
entity, without the prior written consent of RELOACTION, the PROPRIETARY
INFORMATION. COMPANY shall disclose the PROPRIETARY INFORMATION only to
those employees, agents, and representatives of COMPANY who require the
PROPRIETARY INFORMATION to carry out their responsibilities. PROPRIETARY
INFORMATION shall not include information: (a) already in the public domain
or already in the possession of COMPANY prior to its disclosure under this
AGREEMENT, (b) disclosed to COMPANY by a third party not obligated to
maintain such information in confidence, or (c) information which enters
the public domain without breach of any confidentiality obligations.
9. Entire Agreement. This AGREEMENT, including the attached SUPPLEMENTS,
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contains the entire agreement between COMPANY and RELOACTION respecting the
SERVICES of RELOACTION. Any agreement or representation respecting the
SERVICES of RELOACTION or the duties of either COMPANY or RELOACTION in
relation thereto, not expressly set forth in this AGREEMENT, is null and
void.
10. Assignment. This AGREEMENT may not be assigned or otherwise transferred by
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either party without the prior written consent of the other party provided,
however, RELOACTION expressly retains the right to assign or pledge its
right to receive payments hereunder for purposes of securing adequate
financing. Such financing may be secured by a security agreement which
grants to a lender a security interest in, among other things, this
AGREEMENT and any rights arising under any other instrument, document,
account or other obligation that result from this AGREEMENT.
11. Successors. This AGREEMENT shall be binding upon and shall inure to the
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benefit of the parties hereto and their respective assigns and successors.
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12. Amendments. This AGREEMENT may be amended or modified by, and only by, a
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written instrument executed by the parties.
13. Attorneys' Fees. Should any litigation be initiated between the parties
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hereto concerning this AGREEMENT or the rights and duties in relation
thereto, the party prevailing in such litigation shall be entitled, in
addition to such other relief as may be granted, to a reasonable sum as and
for its attorneys' fees in such litigation or in a separate action brought
for that purpose.
14. Severability. In the event any of the provisions of this AGREEMENT are
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determined to be invalid or unenforceable, the same shall be deemed
severable from the remainder of this AGREEMENT and shall not cause the
invalidity or unenforceability of the remainder of this AGREEMENT.
15. Governing Law. This AGREEMENT shall be construed under and in accordance
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with the laws of the State of California.
16. Captions. The captions in this AGREEMENT are for convenience only and are
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not to be relied upon in construing this AGREEMENT.
17. Applicable SUPPLEMENTS. The following SUPPLEMENTS, as initialed by COMPANY
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and RELOACTION and attached hereto, are incorporated herein and made part
of this AGREEMENT:
Initials:
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SUPPLEMENTS COMPANY RELOACTION
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Home Buyout - Amended [ILLEGIBLE]^^ __________
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18. Due Authority. RELOACTION and COMPANY hereby represent and warrant to the
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other party, and each person executing this AGREEMENT on behalf of each
of the respective party certifies by his/her signature, that the person
executing this AGREEMENT on behalf of the respective party is properly
authorized to execute this AGREEMENT on behalf of the respective party,
that such person's signature is sufficient to bind the respective party and
that the respective party is bound thereby.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of the
date first set forth.
P-COM, INC. RELOACTION
0000 Xxxxxxxxxx Xxxxxxxxx 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxx
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Title: Director, Human Resources Title: Senior Vice President
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Date: November 8, 1999 Date: December 9, 1999
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HOME BUYOUT
SUPPLEMENT
THIS SUPPLEMENT is an addition to and part of that certain RELOCATION SERVICES
AGREEMENT (the "AGREEMENT") made effective as of the 8/th/ day of November, 1999
between RELOACTION, a California corporation ("RELOACTION"), and P-COM, INC.
("COMPANY"). All provisions of the AGREEMENT not specifically changed by the
provisions of this SUPPLEMENT shall continue in all respects in full force and
effect.
1. Definitions.
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1.1 ANTICIPATED SALE PRICE. "ANTICIPATED SALE PRICE" with respect to each
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HOME shall mean the average of two (2) independent appraisals obtained
from two (2) independent appraisers reasonably acceptable to
RELOACTION, COMPANY, and the EMPLOYEE, which appraisals shall be based
on comparable sales analysis when possible. If, however, the
appraisals vary by more than five percent (5%) of the higher appraised
value, a third appraisal shall be obtained by RELOACTION, and the
ANTICIPATED SALE PRICE shall be the average of two closest. RELOACTION
shall carefully review all appraisals and appraisal reports;
acceptance of such appraisals and reports is solely within the
discretion of RELOACTION. If, in the judgment of RELOACTION, any
appraisal report has been incompetently prepared, RELOACTION may
request reanalysis and reappraisal or reject such appraisal and obtain
a new appraisal report in lieu of the rejected appraisal report.
1.2 BONA FIDE OFFER. "BONA FIDE OFFER" shall mean an offer from an
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unrelated third party to purchase EMPLOYEE's HOME that RELOACTION
reasonably determines is made in good faith and is likely to close
under its terms and is consistent with COMPANY'S relocation policy.
1.3 DIRECT COSTS. "DIRECT COSTS" shall mean:
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a. Real estate commissions and incidental closing costs including
title search, title insurance, transfer taxes, and legal fees
incurred in the sale of any HOME.
b. Costs related to cleaning and repair of and minor improvements to
any HOME; provided however, that in no event shall such costs
exceed $2,500 without the prior authorization of COMPANY unless
incurred in an emergency making prior authorizations impractical.
c. Mortgage interest payments, finance charges, insurance, and taxes
related to any HOME, except to the extent such expenses are
chargeable to the EMPLOYEE.
d. Capital losses arising from the resale of any HOME (with any
capital gains from the resale of any HOME being considered a
credit against DIRECT COST).
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e. All other out-of-pocket costs and expenses incurred in good faith
by RELOACTION with respect to its purchase, ownership, and resale
of any HOME.
1.4 EFFECTIVE SALE PRICE. "EFFECTIVE SALE PRICE" shall mean the actual
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selling price of the HOME, under an amended sale, received at closing
less contingencies, allowances, adjustments or concessions to the
purchaser.
1.5 EQUITY. "EQUITY" with respect to a HOME shall mean the OFFER PRICE of
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the HOME (or RELOACTION's EFFECTIVE SALE PRICE if higher) less the
amount of all encumbrances on the HOME and closing and other costs
related to the sale of the HOME payable by or chargeable to the
EMPLOYEE, including credits to the buyer.
1.6 EQUITY PAYMENTS. "EQUITY PAYMENTS" shall mean payments to an EMPLOYEE
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of EQUITY in accordance with Section 2.3 of this SUPPLEMENT, and
payments made on behalf of EMPLOYEE to remove liens and/or
encumbrances on the HOME.
1.7 HOME/SPECIAL HOME.
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a. For purposes of providing services under this SUPPLEMENT, "HOME"
shall mean a single family or two family residence or condominium
located in the United States or Canada which is used by the
EMPLOYEE as his/her principal residence and is owned by the
EMPLOYEE, the EMPLOYEE's spouse or any dependent of the EMPLOYEE
residing in the same household, together with the associated
property customarily considered part of such dwelling, but
exclusive of any land in excess of a normal lot for the
neighborhood in which the HOME is located.
b. RELOACTION and COMPANY may consent to include a property as a
"SPECIAL HOME." SPECIAL HOMES shall include, but are not limited
to, mobile homes, manufactured homes located on leased or rented
land, cooperative apartments or multifamily dwellings, property in
which part is used for non-residential purposes, property which
includes land in excess of a normal lot for the neighborhood or
where the value of the land exceeds the improvement value,
property valued in excess of $500,000 or less than $50,000,
property located outside of the United States or Canada, and
property which requires correction of conditions or significant
repairs after acquisition. Property will be considered a SPECIAL
HOME when RELOACTION is requested by COMPANY to purchase property
for a pre-determined price or to modify the method to determine
the ANTICIPATED SALE PRICE. If COMPANY requests RELOACTION to
proceed with the purchase of a SPECIAL HOME, and RELOACTION
agrees, COMPANY shall pay all amounts due RELOACTION as required
for a HOME. In addition, COMPANY shall pay all additional costs
determined necessary by COMPANY and RELOACTION to sell the SPECIAL
HOME according to a mutually agreeable marketing plan.
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1.8 HOME BUYOUT. "HOME BUYOUT" shall mean those services provided by
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RELOACTION to designated EMPLOYEES pursuant to this SUPPLEMENT.
1.9 OFFER PERIOD. "OFFER PERIOD" shall mean the period of time, from the
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date of the offer letter, during which EMPLOYEE may accept
RELOACTION's offer to purchase the HOME.
1.10 OFFER PRICE. "OFFER PRICE", shall mean the ANTICIPATED SALE PRICE of
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that HOME or such other price as determined by COMPANY.
1.11 VALUATION COSTS. "VALUATION COSTS" shall mean the appraisal fees,
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broker's market analyses fees, inspection fees, preliminary title fees
and related fees incurred by RELOACTION during the initial valuation
of each HOME.
2. HOME BUYOUT.
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2.1 Valuation and Marketing Assistance. Upon designation by COMPANY of an
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EMPLOYEE as eligible for HOME BUYOUT, RELOACTION will:
a. Promptly contact the EMPLOYEE and provide counseling regarding the
HOME sale process.
b. Provide EMPLOYEE with list of real estate agents from which to
obtain a broker's market analysis and marketing plans and to
assist EMPLOYEE to select a listing agent.
c. Obtain 2 real estate brokers' market analyses of the HOME.
d. Obtain the ANTICIPATED SALE PRICE.
e. Obtain and review a preliminary title report and appropriate
property inspections on the HOME, which may include pest, general
home, radon, etc., and provide copies of such documents to the
COMPANY and the EMPLOYEE as requested by COMPANY.
f. Provide for the COMPANY and the EMPLOYEE a written profile and
marketing strategy for the HOME, including recommended list price.
g. During the OFFER PERIOD, maintain regular contact with the broker,
the EMPLOYEE, and the COMPANY, follow up on progress and showings,
monitor list price, buyer and broker comments and responses, and
offer negotiating assistance.
h. Prepare written monthly status report for COMPANY.
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2.2 Offer to Purchase.
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a. After determining the ANTICIPATED SALE PRICE, RELOACTION shall
offer to purchase the EMPLOYEE's HOME for the OFFER PRICE by
forwarding to EMPLOYEE an offer. EMPLOYEE shall have an OFFER
PERIOD of sixty (60) days in which to accept RELOACTION's offer.
EMPLOYEE may accept the offer by completing in full and returning
in a timely manner the Contract of Sale and related documents
provided by RELOACTION with the offer.
b. Upon determination by RELOACTION that a property is a SPECIAL
HOME, RELOACTION shall notify COMPANY and obtain authorization to
proceed with an offer to purchase the SPECIAL HOME.
2.3 Payment of EQUITY. The EMPLOYEE shall be entitled to EQUITY as
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follows, subject to the conditions set forth in the Contract of Sale:
a. EQUITY may be advanced during the OFFER PERIOD in an amount not to
exceed 90% of the EQUITY, as needed to close on the purchase of a
new principal residence, upon receipt of executed acceptance
papers and according to the terms of the Equity Loan Note.
b. 100%, or the remaining balance, of the EQUITY upon EMPLOYEE's
acceptance of RELOACTION's offer to purchase the HOME and vacation
of the property.
2.4 Amended Sale. If, during the OFFER PERIOD, EMPLOYEE receives a BONA FIDE
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OFFER for the purchase of the HOME, the EMPLOYEE may present the offer to
RELOACTION. If RELOACTION determines that the offer is a BONA FIDE OFFER,
RELOACTION will amend its Contract of Sale to meet the price and terms of
the BONA FIDE OFFER and pay EMPLOYEE's EQUITY based on the BONA FIDE OFFER
in accordance with Section 2.3 of this SUPPLEMENT. RELOACTION will sign the
BONA FIDE OFFER and proceed with the transaction as seller. RELOACTION
shall use all reasonable efforts to close the sale under the terms of the
BONA FIDE OFFER. RELOACTION will complete the purchase from the EMPLOYEE at
the price determined by the BONA FIDE OFFER. In the event the sale does not
close, RELOACTION will proceed to market and resell the property as
described in Section 2.5. Any forfeited xxxxxxx money retained by
RELOACTION shall be credited to DIRECT COST.
2.5 Resale. Upon the EMPLOYEE's acceptance of RELOACTION's offer to
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purchase the HOME, RELOACTION shall use all reasonable efforts to sell
the HOME at the most favorable price and terms available. RELOACTION
will list the HOME for sale with a broker of its choosing. RELOACTION
shall maintain the HOME in good repair after it is vacated by EMPLOYEE
and until the closing of the resale. RELOACTION shall not sell any
HOME purchased from an EMPLOYEE of COMPANY for less than ninety five
percent (95%) of its ANTICIPATED SALE PRICE without the prior
authorization of COMPANY, which consent shall not be unreasonably
withheld. Consent shall be deemed
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given by COMPANY unless written notice of COMPANY's disapproval of any
such transaction is received by RELOACTION within three (3) business
days after such notice has been given to COMPANY.
3. Reimbursable Expenses.
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3.1 COMPANY shall advance to RELOACTION all VALUATION COSTS, EQUITY
PAYMENTS and DIRECT COSTS incurred or to be incurred by RELOACTION in
providing services pursuant to this SUPPLEMENT. Reimbursable expenses
shall be payable by COMPANY as follows:
a. EQUITY PAYMENTS. EQUITY PAYMENTS shall be advanced to RELOACTION
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by COMPANY prior to payment to EMPLOYEE.
b. VALUATION COSTS. Estimated VALUATION COSTS shall be invoiced to
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COMPANY upon receipt of authorization of service.
c. DIRECT COSTS. DIRECT COSTS shall be invoiced in advance by
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RELOACTION at ten percent (10%) of the OFFER PRICE. Upon depletion
of DIRECT COST funds, additional DIRECT COSTS will be invoiced in
advance at ten percent (10%) of the OFFER PRICE, or shall be
invoiced in an amount based on RELOACTION'S reasonable good faith
estimate of funds required to pay all debts at closing.
3.2 Payments shall be due and payable upon receipt of invoice by COMPANY.
3.3 Closing Adjustment Upon Resale. Upon the closing of an amended sale or
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resale of each EMPLOYEE's HOME, an adjustment shall be made to reflect
the actual DIRECT COSTS incurred by RELOACTION with an excess advance
of DIRECT COSTS by COMPANY being reflected as a credit to COMPANY. If
additional DIRECT COSTS are incurred or accounted for after the
closing adjustment, such additional DIRECT COSTS will be invoiced by
RELOACTION.
4. Fees.
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4.1 BASE FEE. COMPANY shall pay RELOACTION a "BASE FEE" of Five Thousand
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Dollars ($5,000) for each EMPLOYEE authorized to receive services.
However, the BASE FEE shall be One Thousand Dollars ($1,000) with
respect to any EMPLOYEE who, prior to the offer being made, elects not
to participate further in the HOME BUYOUT. BASE FEES shall be invoiced
to COMPANY with VALUATION COSTS upon determination of ANTICIPATED SALE
PRICE.
4.2 INCENTIVE FEE. An "INCENTIVE FEE" shall be earned by RELOACTION upon
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the closing of the following HOME sales:
a. If a HOME is closed as an amended sale an INCENTIVE FEE of One
Thousand Dollars ($1,000) shall be earned at closing.
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b. If a HOME resale is completed where the DIRECT COSTS are fourteen
percent (14%) or less of the purchase price an INCENTIVE FEE of
One Thousand Dollars ($1,000) shall be earned at closing.
Prepayment penalties on the EMPLOYEE's mortgage, excise taxes, and
interest on EQUITY advances when they are charged, will be
excluded from the DIRECT COSTS for calculation of INCENTIVE FEES
earned.
INCENTIVE FEES shall be invoiced at resale closing or shall be deducted
from closing proceeds in accordance with Section 3.3.
4.3 SPECIAL HOME FEE. If COMPANY authorizes RELOACTION to purchase a
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SPECIAL HOME and RELOACTION agrees, COMPANY shall pay all fees for a
HOME plus an additional SPECIAL HOME FEE equal to one percent (1%) of
the purchase price (minimum of $1,000) upon completion of the resale.
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