EXHIBIT 10.104
AGREEMENT FOR SETTLEMENT
AND RELEASE OF CLAIMS
This Agreement for Settlement and Release of Claims (the "Agreement")
is entered into as of the 3 day of April, 2002, by and between SPC Electronics
America, Inc. ("SPCA") and P-Com, Inc. ("P-Com").
RECITALS
WHEREAS, P-Com ordered certain microwave communications systems and
products (the "Products") from SPCA for resale to Winstar Communications, Inc.
("Winstar"); and,
WHEREAS, on April 18, 2001, Winstar filed for protection under Chapter
11 of the U.S. Bankruptcy Code; and,
WHEREAS, in light of the Winstar bankruptcy, SPCA and P-Com desire to
compromise, resolve and settle their accounts related to the accounts receivable
and work-in-process inventory ("WIP") set forth on Exhibit A, attached hereto
and incorporated herein, totaling $1,865,056.54, (the "Debt") of which
$765,056.54 is allocable to SPCA's outstanding accounts receivable for Products
delivered to P-Com ("Accounts Receivable") and $1,100,000 is allocable to
Products currently existing as WIP.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein and the exchange of good and valuable consideration, the
parties hereby agree as follows:
Article I.
PAYMENT AND SCHEDULE OF PAYMENTS
1.1 Payment. P-Com agrees to pay SPCA the sum of USD $1,815,056.54
payable in US dollars and stock of P-Com in installments by wire transfer,
delivery of stock certificates, or other mutually agreeable method as set forth
below. The cash portion of the payment shall be $915,056.54. The stock portion
of the payment shall be in common shares of P-Com, Inc., (the "Shares") equal to
$900,000, valued as forth in Section 4.4.
1.2 Prior Payment. The Parties acknowledge that P-Com paid to SPCA
$50,000 on February 25, 2002 and $50,000 on March 15, 2002 as the first and
second payments, respectively, allocable to the Accounts Receivable;
1.3 Schedule of Payments. The remaining payments shall be made as per
the schedule below:
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PAYMENTS
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DATE CASH STOCK
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March 15, 2002 $ 50,000* $900,000
April 15, 2002 $ 50,000 --
May 15, 2002 $ 50,000 --
June 15, 2002 $ 50,000 --
July 15, 2002 $ 50,000 --
August 15, 2002 $ 50,000 --
September 15, 2002 $ 65,056.54 --
October 15, 2002 $ 50,000** --
November 15, 2002 $ 50,000 --
December 15, 2002 $ 50,000 --
January 15,2003 $ 50,000 --
February 15, 2003 $ 50,000 --
March 15, 2003 $ 50,000 --
April 15, 2003 $ 50,000 --
May 15, 2003 $ 50,000 --
June 15, 2003 $ 50,000 --
July 15, 2003 $ 100,000 --
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*This payment has been received.
**Beginning with the October payment, SPCA shall begin releasing the WIP to
P-Com in proportion to the payments made by P-Com.
0.4 Satisfaction of Debt. This Agreement, and assuming all payments
are made as required hereunder, consitutes full and final satisfaction of the
Debt.
Article II.
REPRESENTATIONS AND WARRANTIES OF P-COM
P-Com represents and warrants to SPCA as follows:
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2.1 Organization and Standing; Articles and Bylaws. P-Com is a
corporation duly organized, validly existing and in good standing under, and by
virtue of, the laws of the State of Delaware.
2.2 Corporate Power. P-Com has all requisite power and authority to
execute and deliver this Agreement and to sell and issue the Shares hereunder.
2.3 Capitalization. The authorized capital stock of P-Com immediately
prior to execution of this Agreement, will consist of 145,000,000 shares of
common stock and 2,000,000 shares of preferred stock. All of the outstanding
shares of common stock are duly authorized, validly issued, fully paid and
nonassessable. The Shares, when issued pursuant to the terms of this Agreement
will be duly authorized, validly issued, fully paid and nonassessable P-Com
capital stock.
2.4 Authorization. All corporate action on the part of P-Com, its
officers, directors and stockholders, necessary for (i) the authorization,
execution and delivery of the Agreement by P-Com, (ii) the authorization, sale,
issuance and delivery of the Shares has been taken. The Agreement, when executed
and delivered by P-Com, will constitute valid and binding obligations of P-Com,
enforceable in accordance with their respective terms.
2.5 Offering. P-Com has not, either directly or through any agent,
offered any securities to or solicited any offers to acquire any securities
from, or otherwise approached, negotiated or communicated in respect of any
securities with, any person or entity in such a manner as to require the offer
or sale of the Shares to be registered pursuant to the provisions of Section 5
of the Securities Act of 1933, as amended (the "Securities Act"), and the rules
and regulations of the Securities and Exchange Commission (the "Commission")
thereunder or the securities laws of any state. Neither P-Com nor anyone acting
on its behalf will take any action that would cause any such registration to be
required (including, without limitation, any offer, issuance or sale of any
security of P-Com under circumstances that might require the integration of such
security with the Shares under the Securities Act or the rules and regulations
of the Commission thereunder) which might subject the offering, issuance or sale
of the Shares to the registration provisions of the Securities Act. Assuming the
truth and accuracy of SPCA's representations and warranties in Article 3 hereof,
the issuance of the Shares is exempt from registration under the Securities Act.
P-Com has complied with all federal and state securities and blue sky laws in
all issuances and purchases of its capital stock prior to the date hereof and
has not violated any law in making such issuances and purchases of its capital
stock prior to the date hereof. Any notices required to be filed under federal
and state securities and blue sky laws shall be filed on a timely basis.
2.6 Blue Sky. P-Com has or shall have obtained all necessary "Blue
Sky" law permits and qualifications, or have the availability of exemptions
therefrom, required by any state for the offer and placement of the Shares as
contemplated herein.
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Article III.
REPRESENTATIONS AND WARRANTIES OF SPCA
SPCA hereby represents and warrants to P-Com with respect to the
Shares it will receive in satisfaction of its debt as follows:
3.1 Organization and Standing. SPCA is a corporation duly organized,
validly existing and in good standing under, and by virtue of, the laws of the
State of Georgia.
3.2 Authorization. All corporate action on the part of SPCA, its
officers, directors and shareholders, necessary for (i) the authorization,
execution and delivery of the Agreement by SPCA, and (ii) the performance of all
of the SPCA's obligations under the Agreement, has been taken.
3.3 Investment. SPCA is acquiring the Shares for its own account, and
is not acquiring the Shares with the view to, or for resale in connection with,
any distribution in violation of the Securities Act.
3.4 Accredited Investor. SPCA is an "accredited investor" as defined
in Rule 501(a) of Regulation D promulgated under the Securities Act.
3.5 Rule 144. SPCA acknowledges that the Shares must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from such registration is available. It is aware of the provisions
of Rule 144 promulgated under the Securities Act which permit limited resale of
shares purchased in a private placement subject to the satisfaction of certain
conditions, including, among other things, the existence of a public market for
the shares, the availability of certain current public information about SPCA,
the resale occurring not less than one year after a party has purchased and paid
for the security to be sold, the sale being effected through a "broker's
transaction" or in transactions directly with a "market maker" and the number of
shares being sold during any three-month period not exceeding specified
limitations.
3.6 Legends. It is understood that the certificates evidencing
the Shares may bear the following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
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STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT
OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED, OR UNLESS SOLD PURSUANT
TO RULE 144 OF SUCH ACT."
REGISTRATION OF SHARES
0.1 Obligation to Register the Shares. As soon as practicable after
the execution of this Agreement, P-Com will file a Form S-3 registering the
Shares and P-Com will use its best efforts to cause the Form S-3 to become
effective with 120 days of filing. Once effective, P-Com will use its best
efforts to keep the Form S-3 effective for use by SPCA for a period of no less
than two (2) years.
0.2 Failure to Register the Shares. If P-Com fails to have the Form
S-3 declared effective within 120 days of the execution of this Agreement, SPCA
shall, in its sole discretion, either: 1) demand payment of the $900,000 in
cash; or 2) agree to extend the period of time in which the Form S-3
registration statement must become effective. The payment shall be paid in cash
by wire transfer to SPCA within fifteen (15) days of such demand. If SPCA
chooses to demand payment of the cash, once the payment has been received by
SPCA, then SPCA shall cooperate with P-Com and take all actions necessary to
ensure return and cancellation of the Shares to P-Com.
0.3 Failure to Keep Form S-3 Effective. If, within the two year
period set forth in Section 4.1 above, P-Com fails to keep the Form S-3
effective for use by SPCA at anytime while SPCA still holds any of the Shares,
P-Com shall have a period of no more than thirty (30) days to have the Form S-3
declated effective again. If the Form S-3 has not been declared effective within
the thirty (30) day period, then SPCA shall have the option, in its sole
discretion, to demand a payment in cash of any amount of the $900,000 remaining
to be paid to SPCA (the "Remaining Cash Payment"). The amount of the Remaining
Cash Payment shall be calculated by subtracting the amount of cash that SPCA has
received (minus any broker's fees and expenses) from sales of the Shares from
$900,000. The Remaining Cash Payment shall be paid in cash by wire transfer to
SPCA within fifteen (15) days of such demand. If SPCA chooses to demand the
Remaining Cash Payment, then once the cash payment has been received, it shall
cooperate with P-Com and take all actions necessary to ensure the return and
cancellation of any of the Shares still held by SPCA to P-Com.
0.4 Pricing of Shares. The price per share to be used in calculating
the number of shares to be issued to SPCA shall be the average of the high and
low prices as reported on the NASDAQ Stock Market for the five (5) trading days
preceding the execution of this Agreement.
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MISCELLANEOUS ISSUES
0.1 Release of Test Equipment. Upon execution of this Agreement, SPCA
shall release to P-Com all P-Com owned test equipment (the "Test Equipment").
P-Com shall be responsible for all costs required to transport the Test
Equipment from SPCA's parent's warehouse in Tokyo, Japan.
0.2 Confirmation of WIP. All of the SPCA material set forth on
Exhibit A related to the Winstar production will be reviewed and confirmed by
P-Com as resulting from orders placed by P-Com.
0.3 Release. Except as provided in Article 5.4 below and in
consideration of the reciprocal releases contained herein and the payments
outlined in Article1 above, SPCA and P-Com, for themselves and for their
respective officers, directors, employees, agents, affiliates, lenders,
partners, investors, successors and assigns (the "Related Persons"), fully and
forever release, remise and discharge each other and their Related Persons of
and from any and all claims, demands, damages, debts, liabilities, losses,
accounts, obligations, costs and expenses (including reasonable attorneys' fees
and expenses) and other relief of any nature whatsoever, whether known or
unknown, whether in law or in equity, that any of them ever had, now has or
hereafter shall or may have arising out of or in any way relating to the order,
manufacture and supply of the Products by SPCA for P-Com for resale to Winstar,
for such claims arising out of transactions between the parties prior to or as
of the date of this Agreement.
0.4 Limitation of Release. This letter and the release set forth in
Article 5.3 above is not intended and shall not be construed as a release or
discharge of SPCA's continuing obligations for warranty, indemnification, and
other product support related clauses and the all agreements between SPCA and
P-COM shall remain in full force and effect as provided therein.
0.5 Waiver Section 1542 California Civil Code. P-Com and SPCA each
expressly waives and releases any and all rights and benefits under Section 1542
of the Civil Code of the State of California (OR ANY ANALOGOUS LAW OF ANY OTHER
STATE), which reads as follows: "A general release does not extend to claims
which the creditor does not know or suspect to exist in his favor at the time of
executing
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the release, which, if known by him, must have materially affected his
settlement with the debtor."
0.6 No Admission of Liability. Nothing contained in this Agreement
shall constitute or be treated as an admission by the either party of liability,
of any wrongdoing, or of any violation of law. This letter shall be construed
and interpreted in accordance with the laws of the State of California.
0.7 Successors and Assigns. This Agreement shall be binding on and
inure to the benefit of each party's successors and assigns. Notwithstanding the
foregoing, neither party shall either voluntarily or by operation of law assign
or transfer its rights under this Agreement without the prior written consent of
the other party, such consent not to be unreasonably withheld, except that SPCA
may, at its option, transfer its rights under this Agreement to its parent, an
affiliate or subsidiary, provided all of the requirements of all applicable
state and federal securities regulations are satisfied.
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IN WITNESS WHEREOF, the parties have executed this Agreement for Settlement and
Release of Claims on the day and year first set forth above.
SPC ELECTRONICS AMERICA, INC.:
By: /s/ Akira Kameishi
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Name: Akira Kameishi
Title: Vice President
P-COM, INC.:
By: /s/ Xxxxxxxx Xxxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Vice President, Chief Financial Officer
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