EXHIBIT 10.106
AGREEMENT FOR SETTLEMENT
AND RELEASE OF CLAIMS
This Agreement for Settlement and Release of Claims (the "Agreement") is
entered into as of the 23 day of April, 2002, by and among EESA, Inc. ("EESA
USA") and its affiliates, EESA Europe S.r.l.("EESA Europe"), and ELTEL
Engineering S.r.l. ("ELTEL") (collectively, referred to as "EESA") on the one
hand, and P-Com, Inc. ("P-COM USA") and its affiliate, P-Com Italia S.p.A.
(P-COM Italia") (collectively "P-COM") on the other hand.
RECITALS
WHEREAS, P-COM and EESA are parties to a series of agreements relating to
the manufacture, purchase and sale of certain microwave radio components, as
follows:
a. Memorandum Of Understanding dated December 7, 1999;
b. Settlement Agreement dated December 2, 1999;
c. Manufacturing and Supply Agreement dated March 11, 1998; and,
WHEREAS, P-COM and ELTEL are parties to a series of agreements relating to
the manufacture of the Econolink radio product, as follows:
a. Settlement Agreement dated December 7, 1999;
b. Manufacturing and Supply Agreement dated March 11, 1998; and
WHEREAS, P-COM Italia and ELTEL are parties to an agreement to purchase and
sell certain transceiver units, as follows:
a. Memorandum of Understanding dated July 26, 1999; and
WHEREAS, P-COM Italia and EESA Europe (sometimes referred to as "EESA
Italia") are parties to an agreement to purchase and sell certain transceiver
units, as follows:
a. Memorandum of Understanding dated September 1, 2000.
WHEREAS, parties hereto desire to compromise, settle and resolve all of
their disputes worldwide under or relating to any agreements, written or oral,
between them, including but not limited to all of the agreements listed in the
foregoing recitals (the "P-COM/EESA Agreements") and any other arrangements,
agreements or understanding between the parties.
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 USA agrees to pay EESA USA the sum of $500,000 payable
in US dollars and common stock of P-COM USA 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 $150,000. The stock portion of
the payment shall be in common shares of P-COM USA (the "Shares") equal to
$350,000, valued as forth in Section 4.3.
1.2 Schedule of Cash Payments. The cash payments shall be made as per the
schedule below:
a. $150,000 upon execution and delivery of this Agreement;
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF P-COM
P-COM represents and warrants to EESA as follows:
2.1 Organization and Standing. P-COM USA and P-Com Italia are duly
organized, validly existing and in good standing under, and by virtue of, the
laws of their respective jurisdictions.
2.2 Corporate Power. P-COM USA and P-Com Italia each have all requisite
power and authority to execute and deliver this Agreement and P-COM USA has the
power and authority to sell and issue the Shares hereunder.
2.3 Capitalization. The authorized capital stock of P-COM USA 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 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 USA
common stock.
2.4 Authorization. All corporate action on the part of P-COM USA, its
officers, directors and stockholders, necessary for (i) the authorization,
execution and delivery of the Agreement by P-COM USA, and (ii) the
authorization, sale, issuance and delivery of the Shares has been taken or will
have been taken prior to delivery.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF EESA
EESA hereby represents and warrants to P-COM with respect to the Shares it
will receive pursuant to this Agreement as follows:
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3.1 Organization and Standing. EESA USA, EESA Europe, EESA Italia and
ELTEL are each duly organized, validly existing and in good standing under, and
by virtue of, the laws of their respective jurisdictions.
3.2 Authorization. All corporate action on the part of EESA USA, EESA
Italia, EESA Europe, and ELTEL, and their respective officers, directors and
shareholders, necessary for (i) the authorization, execution and delivery of
this Agreement, and (ii) the performance of all of their respective obligations
under the Agreement, has been taken.
3.3 Investment. EESA USA is acquiring the Shares for its own account. EESA
USA 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. EESA USA is an "accredited investor" as defined
in Rule 501 (a) of Regulation D promulgated under the Securities Act.
3.5 Rule 144. EESA USA 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 EESA
USA, 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 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."
ARTICLE IV.
REGISTRATION OF SHARES
4.1 Obligation to Register the Shares. As soon as practicable after
execution of this Agreement, P-COM USA will prepare and file with the Securities
and Exchange Commission
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("SEC") a Registration Statement for the Shares on Form S-3 and use its
reasonable efforts to cause the SEC to declare the Registration Statement
effective no later than September 1, 2002 and keep the same effective for use by
EESA USA for a period of no less than two (2) years. If the Registration
Statement is not effective on or before December 31, 2002 for reasons within
P-Com's control, then P-Com will pay EESA USA $350,000 in cash and repurchase
the Shares in accordance with state and federal securities laws.
4.2 Pricing of Shares. The price per share to be used in calculating the
number of shares to be issued to EESA USA shall be the average of the daily high
and low prices as reported on the NASDAQ Stock Market for the ten (10) trading
days preceding the execution and delivery of this Agreement.
ARTICLE V.
MISCELLANEOUS ISSUES
5.1 Transfer of Encore Product Line. Prior to execution of this Agreement,
EESA and P-COM agree to review and identify documentation relating to the Encore
product line, including by not limited to all specifications, design, xxxx of
materials, test procedures, schematics, licenses and other documentation as
reasonably requested relating to the Encore product line (the "Encore
Intellectual Property"). Upon execution and delivery of this Agreement, EESA
shall provide and/or license the Encore Intellectural Property to P-COM without
restriction on manufacture, sale or use by P-COM in any manner whatsoever.
5.2 Confirmation of WIP. Prior to execution of this Agreement P-COM and
EESA shall catelogue, evaluate and prepare a list of raw materials, components
and work in process on the Encore production. The parties will attach the list
as an Exhibit A to this Agreement. EESA shall make such WIP available for pick
up by P-COM immediately after the execution of this Agreement. P-COM shall have
no further responsibility for any other raw materials held by EESA.
5.3 Cancellation of Purchase Orders. Any undelivered items under an open
or partially open Purchase Orders, including but not limited to those Purchase
Orders set forth on Exhibit B to this Agreement, shall hereby be considered
cancelled in their entirety at no addional cost to P-COM. Any product, in any
state of production or completion, that EESA may have had designated for future
PO delivery shall be the sole responsibility of EESA.
5.4 Release. Except as provided in Article 4.1 above and Article 5.5 below
and in consideration of the reciprocal releases contained herein and the
payments outlined in Article 1 above, EESA 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 components by EESA for P-COM arising out of or
related to the P-COM/EESA Agreements or any other transactions, written or
verbal, between the parties prior to or as of the date of this Agreement.
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5.5 Limitation of Release. This Agreement and the release set forth in
Article 5.4 above is not intended and shall not be construed as a release or
discharge of the continuing obligations for warranty, indemnification, and other
product support related clauses by EESA USA, EESA Europe, ELTEL and EESA Italia
in favor of P-COM USA or P-COM Italia, as the case may be, which clasues shall
remain in full force and effect as provided therein.
5.6 Waiver Section 1542 California Civil Code. P-COM and EESA 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 the release, which, if known by him, must have materially affected his
settlement with the debtor."
5.7 No Admission of Liability; Governing Law. 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 Agreement shall
be governed, construed and interpreted in accordance with the laws of the State
of California.
5.8 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 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 it may be assigned in connection with
the merger, acquisition or divestiture of a party.
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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.
EESA, INC. ELTEL ENGINEERING, S.R.L.
By: /s/ Pier Antoniucci By: /s/ Pier Xxxxxxxx
------------------------- --------------------------
Name: Pier Antoniucci Name: Pier Xxxxx Xxxxxxxx
Title: President Title: Chief Executive Officer
EESA EUROPE S.R.L.
a/k/a EESA ITALIA
By: /s/ Merluici Xxxxxxxx
-------------------------
Name: Merluici Xxxxxxxx
Title: Chief Executive Officer
P-COM, INC. P-COM ITALIA, SpA.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------- --------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxx
Title: Chief Operating Officer Title: Chief Operating Officer
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EXHIBIT -A-
Section I: COMPONENT INVENTORY SUMMARY
BOX REF # QTY DESCRIPTION
--------------------------------------------------------------------------------
1 1-Box Active Components, Assorted Mfrs
2 1-Box Assorted Components and Aluminum Housings
3 1-Box Duroid Boards
4 1-Box Duroid raw boards (fabs) by Tacomic
5 1-Box Duroid raw boards (fabs) by Tacomic
6 1-Box Duroid raw boards (fabs) by Tacomic
7 1-Box Duroid raw boards (fabs) by Tacomic
8 1-Box Bonded Assemblies and Mechanical Housings
9 1-Box Reeled Bulk Components, Caps and Resistors
10 1-Box Reeled Bulk Components, Caps and Resistors
11 1-Box Reeled Bulk Components, Caps and Resistors
12 1-Box Reeled Bulk Components, Caps and Resistors
Section II: ENGINEERING DOCUMENTATION
REF # QTY DESCRIPTION
--------------------------------------------------------------------------------
1 1 ea CD Media: SCD's and all related documentation
containing drawings and other relevant designs.
2 2 lot Documentation set of specifications for subject
EESA components.
3 1 lot Top Assembly BOM, for retrieving lower level docs
in CD
4 1 lot Test Procedures
The above represents a complete list of materials and documentation as specified
in the terms of the settlement agreement between the two parties dated April
2002, referred to as Exhibit A.
Acknowledged by P-Com, Inc. Acknowledged by EESA, Inc., et al.
/s/ Xxxx Xxxxxx /s/ Pier Antoniucci
------------------------- -------------------------------
Signature Signature
Xxxx Xxxxxx, COO Pier Antoniucci, President
------------------------- -------------------------------
Printed Name & Title Printed Name & Title
April 23, 2002 April 23, 2002
------------------------- -------------------------------
Dated Dated
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EXHIBIT B
PURCHASE ORDERS
See attached.
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