EXHIBIT 10.69
PENALTY SETTLEMENT AGREEMENT
This Penalty Settlement Agreement (the "Agreement") is made between P-Com,
Inc., a Delaware corporation ("P-Com"), and Xxxxxxxx Capital Management, Inc.
(the "Investor"), with respect to an Agreement between P-Com and the Investor
dated as of June 4, 1999 (the "Original Agreement"). Capitalized terms not
defined in this Agreement shall have the meanings given them in the Original
Agreement.
1. The Investor has, under the Original Agreement, a Put Right and/or a
right to receive Late Registration Penalties, under certain circumstances. The
Investor hereby waives all past, present and future Put Rights and Late
Registration Penalties, for all past, present and future circumstances. P-Com
agrees to establish a mechanism, satisfactory to the Investor, to ensure that
transfers of Common Stock properly sold under the resale registration statement
contemplated by the Original Agreement (once such resale registration statement
becomes effective) will be handled expeditiously by the transfer agent and that
the transferee will receive unlegended stock.
2. P-Com hereby agrees to forthwith issue to the Investor 58,263 shares of
unregistered P-Com common stock, which is equal to $275,000 divided by the
Price. The "Price" is the product of (a) 90% times (b) the mean average of the
closing sale prices of P-Com common stock as reported by the Nasdaq National
Market for the 15 trading days ending on November 10, 1999 (inclusive). The
parties agree that the Price is $4.72.
3. P-Com hereby agrees to issue to the Investor on January 20, 2000 a
Warrant to purchase 443,000 shares of unregistered P-Com common stock. The per-
share exercise price of such Warrant shall be equal to the mean average of the
closing sale prices of P-Com common stock as reported by the Nasdaq National
Market for the 15 trading days ending on January 19,
2000 (inclusive); provided, that in no event shall the exercise price be lower
than $4.50 per share nor higher than $8.50 per share. Such Warrant shall expire
on January 19, 2003 (or earlier in the event of an acquisition), shall have a
net issuance feature, shall not have any price-based antidilution or reset
provisions, and shall otherwise have terms and conditions which are standard and
customary for warrants issued in similar situations.
4. The parties acknowledge that the consideration in Sections 2 and 3 of
this Agreement is intended to reflect past and future Late Registration
Penalties, and the Investor's ability after December 20, 1999 to use SEC Rule
144 for resales (subject to the requirements of Rule 144). P-Com agrees that if
the Investor properly sells any Common Stock under and in accordance with SEC
Rule 144, P-Com will use its best efforts to cause the transfer to be handled
expeditiously by the transfer agent and to ensure that the transferee will
receive unlegended stock.
5. The Investor hereby waives any rights and remedies under the Original
Agreement arising from inaccuracies in the SEC Documents to the extent such
inaccuracies were caused by the necessity to restate P-Com's financial
statements for the matters and to the extent disclosed in P-Com's January 28,
1999 and October 28, 1999 press releases, and the various writedowns, writeoffs
and charges described in P-Com's Form 10-Q for the quarter ended June 30, 1999.
6. P-Com hereby grants to the Investor piggyback registration rights
(subject to customary terms and conditions of standard piggyback registration
rights agreements), for the shares of common stock issued pursuant to this
Agreement or upon exercise of the Warrant, on any registration statement
hereafter filed by the Company; provided, that there shall be no right to
piggyback on any Form S-8 or Form S-4, nor on the resale registration statement
for the
2
Registrable Securities contemplated by the Original Agreement, nor on the resale
registration statement which P-Com is obliged to file for the investors in P-
Com's June 22, 1999 $40,000,000 common stock PIPES offering.
7. This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof. Any negotiations, understandings or
agreements, prior or contemporaneous, written or oral, with respect to such
subject matter are superseded hereby and merged herein. This Agreement may not
be amended except in writing.
8. Except as expressly amended hereby, the Original Agreement, as amended
in writing from time to time through the date hereof, remains unchanged and in
full force and effect. Without limitation, the provisions of the Original
Agreement requiring P-Com to strive to register for resale the Registrable
Securities remain effective; however, the particular remedies of the Put Right
and the Late Registration Penalties are eliminated. Also, the Investor hereby
agrees not to, until the earlier of January 31, 2000 or such time as P-Com has
fully repaid the Union Bank of California debt due in January 2000, seek any
remedy whatever for failure to have the resale registration statement declared
effective, and further agrees never to seek any remedy whatever for failure to
have the resale registration statement declared, before December 21, 1999,
effective.
DATED: November 16, 1999
P-COM, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Vice President and Chief Financial Officer
XXXXXXXX CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxx
------------------------------------------
Xxxxx Xxxxx
Title: President
----------------------------------------
3
By: _________________________________________
4
