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EXHIBIT 10.80
COMMON STOCK PIPES PURCHASE AGREEMENT
THIS COMMON STOCK PIPES PURCHASE AGREEMENT (the "Agreement") is made
as of August 11, 2000, by and between P-Com, Inc., a Delaware corporation (the
"Company"), and the State of Wisconsin Investment Board, an agency of the State
of Wisconsin (the "Investor").
RECITALS:
A. The Company desires to sell shares of the Company's Common Stock,
$.0001 par value ("Common Stock") to the Investor, and the Investor desires to
purchase shares of Common Stock, on the terms and subject to the conditions set
forth in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Sale of Common Stock.
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1.1 Sale and Issuance of Common Stock. The Company shall sell to the
Investor and the Investor shall purchase from the Company, on the date of the
Closing (as defined in Section 1.2 below), at a price of $6.11 per share ("Per
Share Price"), 3,000,000 shares of Common Stock (the "Shares"). For ninety (90)
days after the date of Closing, the Company will not, without adjusting the Per
Share Price hereunder accordingly, sell (i) shares of Common Stock (other than
upon the conversion or exercise of convertible or exercisable securities which
were outstanding before the date of Closing or any Series A Junior Participating
Preferred Stock) at a price per share of less than $6.11, or (ii) options,
warrants or any other securities that can be converted into, or otherwise
exchanged for, shares of the Company's Common Stock at a conversion or exercise
price per share less than $6.11. In the event the Company shall, during the
period ending ninety (90) days after the date of Closing, sell any shares of
Common Stock (other than upon the conversion or exercise of convertible or
exercisable securities which were outstanding before the date of Closing or any
Series A Junior Participating Preferred Stock), or instruments that can be
converted into or otherwise exchanged for Common Stock (the "Subsequent Sale")
exercisable at a price per share (the "Subsequent Purchase Price") of less than
$6.11, the Company shall, within ten (10) business days after the Subsequent
Sale, pay to the Investor an amount equal to the product of 3,000,000 times the
difference between $6.11 and the Subsequent Purchase Price.
1.2 Closing. The purchase and sale of the Shares shall take place at
1:15 p.m. Pacific Daylight Time on August 11, 2000, at the offices of Brobeck,
Phleger & Harrison LLP, 12390 El Camino Real, San Diego, California 92130, or on
such date and at such time and place as the Company and the Investor shall
mutually agree (the "Closing"). At the Closing the Company shall deliver to the
Investor two stock certificates, one representing 2,400,000 Shares and the other
representing 600,000 Shares, against delivery to the Company by the Investor of
the full aggregate cash purchase price by wire transfer to the Company. Prior to
the Investor's delivery of payment for the Shares, the Company will deliver via
facsimile a copy of the two
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stock certificates to be delivered upon Closing to the office of the Investor
(at the fax number indicated on the signature page of this Agreement); the
actual stock certificates will be delivered to the Investor by overnight courier
after the Investor's delivery of payment for the Shares.
2. Representations and Warranties of the Company. For purposes of this
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Section 2, unless the context otherwise requires, the term "Company" shall
include the Company and its subsidiaries as listed in its most recent Annual
Report on Form 10-K for the year ended December 31, 1999 (the "Annual Report")
filed with the Securities and Exchange Commission (the "SEC"). Except as set
forth in the Disclosure Letter delivered to the Investor supplementally (the
"Disclosure Letter"), the Company hereby represents and warrants to the Investor
as follows:
2.1 Corporate Organization and Authority of the Company. The Company
and each of its subsidiaries:
(a) is a corporation duly organized, validly existing,
authorized to exercise all its corporate powers, rights and privileges and in
good standing in the state or jurisdiction of its incorporation;
(b) has the corporate power and authority to own and operate its
properties and to carry on its business as presently conducted and as proposed
to be conducted; and
(c) is qualified to do business as a foreign corporation in each
jurisdiction in which the ownership of its property or the nature of its
business requires such qualification, except where failure to so qualify would
not have a materially adverse effect on the business, properties or financial
condition of the Company and its subsidiaries, taken as a whole. The Company has
furnished to the Investor true and correct copies of its Certificate of
Incorporation and Bylaws, each as amended to date.
2.2 Capitalization. The authorized capital stock of the Company
consists of:
(a) Preferred Stock. 2,000,000 shares of Preferred Stock, $.0001
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par value, 750,000 shares of which have been designated Series A Junior
Participating Preferred Stock, of which none were issued and outstanding as of
August 4, 2000.
(b) Common Stock. 95,000,000 shares of Common Stock, $.0001 par
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value, of which 77,228,710 shares were issued and outstanding as of August 4,
2000.
(c) All outstanding shares of the Company's Common Stock have
been duly authorized and validly issued (including, without limitation, issued
in compliance with applicable federal and state securities laws), and are fully
paid and nonassessable.
(d) Since August 4, 2000, the Company has not issued any shares
of Common Stock or Preferred Stock except in connection with the exercise of
outstanding options or warrants. Except as described in the Disclosure Letter,
there are no options, warrants, conversion privileges or other contractual
rights presently outstanding to purchase or otherwise
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acquire from the Company any shares of the Company's capital stock or other
securities (whether or not authorized).
2.3 Subsidiaries. The Company does not presently own, have any
investment in, or control, directly or indirectly, any subsidiaries,
associations or other business entities, except as disclosed in the Annual
Report. The Company is not a participant in any joint venture or partnership,
except as disclosed in the Annual Report.
2.4 Authorization. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the authorization,
execution, delivery and performance by the Company of all its obligations under
this Agreement and for the authorization, issuance, sale and delivery of the
Shares has been taken, and this Agreement, once executed by the Company and the
Investor, will constitute a legally binding and valid obligation of the Company
enforceable in accordance with its terms, such enforceability being subject only
to laws of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies. Except for rights, if any, which have been duly
waived, the issuance and sale of the Shares will not give rise to any preemptive
rights or rights of first refusal on behalf of any person in existence on the
date hereof.
2.5 Validity of Shares. The Shares, when issued, sold and delivered
in accordance with the terms and for the consideration expressed in this
Agreement, shall be duly and validly issued (including, without limitation,
compliance with applicable federal and state securities laws), fully paid and
nonassessable.
2.6 No Conflict. The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby will not, conflict
with, or result in any violation of, or default (with or without notice or lapse
in time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to a loss of a material benefit under, any
provision of the Certificate of Incorporation or Bylaws of the Company. The
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby will not trigger any antidilution right or
rights to acquire additional equity securities in the Company and will not
conflict with, or result in any violation of, or default (with or without notice
or lapse in time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit under, any provision of any mortgage, indenture, lease or other
agreement or instrument, permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to the
Company, its properties or assets, the effect of which could have a material
adverse effect on the Company or materially impair or restrict its power to
perform its obligations as contemplated hereby.
2.7 Accuracy of Reports. The Annual Report, the Company's quarterly
report on Form 10-Q for the quarter ended March 31, 2000 filed with the SEC (the
"Quarterly Report"), and any reports required to be filed by the Company
thereafter to the date of this Agreement under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), copies of which have been furnished to
the Investor (together, the "SEC Reports"), have been duly filed, were (as
amended to date) complete and correct in all material respects as of the dates
at which the
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information was furnished, and (as amended to date) contained (as of such dates)
no untrue statement of a material fact nor omitted to state a material fact
necessary in order to make the statements made therein, in light of the
circumstances in which they were made, not misleading.
2.8 Changes. Except as otherwise disclosed herein, in the Disclosure
Letter or in the SEC Reports, between March 31, 2000 and the date of this
Agreement there has not been:
(a) any change in the assets, liabilities, financial condition,
prospects or operations of the Company from that reflected in the Quarterly
Report, except changes in the ordinary course of business which have not been,
either in any individual case or in the aggregate, materially adverse;
(b) any material change in the contingent obligations of the
Company, whether by way of guaranty, endorsement, indemnity, warranty or
otherwise;
(c) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties or business of the
Company;
(d) any declaration or payment of any dividend or other
distribution of the assets of the Company;
(e) any labor organization activity; or
(f) to the best of the Company's knowledge, any other event or
condition of any character which has materially and adversely affected the
Company's assets, liabilities, financial condition, prospects or operations.
2.9 Government Consent, etc. No consent, approval or authorization of
or designation, declaration or filing with any governmental authority on the
part of the Company is required in connection with the valid execution and
delivery of this Agreement, or the offer, sale or issuance of the Shares, or the
consummation of any other transaction contemplated hereby, except the filing of
a Registration Statement and related activities pursuant to Section 4 hereof.
2.10 Full Disclosure. The representations and warranties of the
Company contained in this Agreement, when read together with the Disclosure
Letter and the SEC Reports, do not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements contained herein, in light of the circumstances under which they were
made, not misleading.
2.11 Conflicts Prohibited. The Company represents, warrants and
covenants that to the best of its knowledge no officer or employee of Investor
has a direct or indirect economic interest in the Company or its property or
contracts other than as disclosed in the SEC Reports, nor will any officer or
employee of Investor receive, directly or indirectly, anything of substantial
economic value for his or her private benefit from the Company or anyone acting
on its behalf in connection with the investment made pursuant to this Agreement.
2.12 Intellectual Property. The Company has not violated and is not
currently in violation of any copyright, trademark or other intellectual
property rights of any third persons,
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except to the extent that such violation does not materially and adversely
affect the Company or its operations.
2.13 Litigation/Bankruptcy/Malfeasance. The Company is not the
subject of and has not received notice of any legal proceedings of the following
types to which the Company is a party (or, if applicable, any executive officer
or director of the Company) or any of its property is the subject: any
proceeding that involves a claim against the Company for damages in excess of
$500,000; any material bankruptcy, receivership or similar proceedings with
respect to the Company; or any criminal proceedings or civil proceedings for
fraud or malfeasance of which a director or executive officer of the Company is
the subject (excluding minor offenses).
3. Representations and Warranties of the Investor. The Investor
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represents and warrants to the Company as follows:
3.1 Organization. It is an agency of the State of Wisconsin, duly
created by statute and validly existing under the laws of the State of
Wisconsin, with all requisite power and authority to conduct its business as now
being conducted.
3.2 Authority. It has all government-agency right, power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Investor and the consummation by it of the transactions contemplated hereby have
been duly authorized by all necessary government-agency action on behalf of the
Investor. This Agreement has been duly executed and delivered by and constitutes
a legal, valid and binding obligation of the Investor, enforceable in accordance
with its terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies. The execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated hereby will not, conflict with or result in any violation of any
obligation under any provision of the authorization statute or organizational or
other charter documents of the Investor or any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to the Investor.
3.3 Information. The Investor represents that it has received all the
information it has requested from the Company and considers necessary or
appropriate for deciding whether to purchase the Shares. The delivery of any
information by the Company to the Investor shall not abrogate the
representations and warranties of the Company contained herein.
3.4 No Current Resale. The Investor is acquiring the Shares for its
own account and not with a view to sale or distribution. Any such sale or
distribution shall be made only in compliance with the provisions of the
Securities Act of 1933, as amended (the "Securities Act") and all applicable
blue sky laws. The Investor acknowledges that the Shares are not now registered
under the Securities Act or any blue sky law, and might never be so registered.
The Investor further acknowledges that the stock certificates representing the
Shares will bear a customary securities-law restrictive legend.
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3.5 Status of Investor (Regulation D and HSR). The Investor is an
"accredited investor" as such term is defined in Rule 501 as promulgated by the
SEC under the Securities Act. The nature of the Investor results in the
filing/waiting requirement of the Hart-Scott-Rodino Antitrust Improvements Act
of 1976 not being applicable to this transaction.
4. Covenants.
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4.1 Registration of Shares.
(a) The Company shall, before 21 days after the SEC declares
effective the Company's Form S-3 registration statement for the resale of the
Common Stock issued by the Company in exchange for its Series B Convertible
Participating Preferred Stock, prepare and file with the SEC a registration
statement on Form S-3 under the Securities Act covering the resale of the Shares
by the Investor (the "Registration Statement"), and corresponding applications
for registration under the blue sky laws of any states requiring such blue-sky
registration (it being understood that in the vast majority of states no such
registration is legally required, due to the Company's Nasdaq National Market
listing or other reasons). The Company shall use its reasonable diligent efforts
to obtain effectiveness of the Registration Statement and such blue sky
registrations as soon thereafter as practicable, and in any event within 90 days
after the date of the Closing, and shall use its best efforts to keep the
Registration Statement and such blue sky registrations effective after that. In
the event that the Registration Statement is not declared effective by the date
that is 90 days after the date of the Closing, the Company shall pay to the
Investor liquidated damages in an amount equal to (a) 0.25% of the total
purchase price of the Shares purchased by the Investor pursuant to this
Agreement for each complete seven-day period after the date that is 90 days
after the date of Closing that the Registration Statement is not declared
effective, plus (b) $200,000. Notwithstanding the foregoing, the Company will
only be required to maintain the effectiveness of the Registration Statement and
such blue sky registrations until the earlier of (a) such time as all of the
Shares have been disposed of by the Investor, or (b) such date on which the
Investor may legally dispose of all of the Shares held by it in one transaction
in the open market pursuant to Rule 144(k) under the Securities Act. The Company
shall also cause the Shares to be listed on the Nasdaq National Market and on
any stock exchange on which the Common Stock may from time to time be listed.
The Company shall pay all fees and expenses incurred by the Company in
connection with preparing, filing, prosecuting and updating the Registration
Statement, such blue sky applications and registrations, and such listing,
including all registration and filing fees, listing fees, printing expenses, and
fees and disbursements of the Company's counsel and accountants.
(b) The Investor shall cooperate fully with the Company in the
preparation of such Registration Statement and blue sky applications and shall
provide to the Company all information and materials (including updated
information and materials) regarding itself and its proposed method of
disposition of the Shares and take all actions reasonably requested by the
Company to permit the Company to comply with applicable requirements of the SEC,
to comply with applicable requirements of the relevant blue sky laws, and to
obtain the desired acceleration of the effective date of such Registration
Statement.
(c) Subject to Section 4.1(d) hereof, the Company shall promptly
prepare and file with the SEC and any relevant blue sky authorities such
amendments and
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supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective and
to comply with (and enable the Investor to comply with) the provisions of the
Securities Act and Rule 415 thereunder with respect to the disposition of all
the Shares.
(d) During the effectiveness of the Registration Statement, the
Company shall promptly notify the Investor in writing of the happening of any
event or other circumstance as the result of which, in the Company's judgment,
(i) the prospectus included in the Registration Statement, as then in effect,
would include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, or (ii) the
offer or resale of the Shares would otherwise have a material and adverse effect
on any proposed or pending acquisition, merger, business combination or other
material transaction involving the Company; and, upon receipt of such notice and
until the earlier of (i) the date the Company makes available to the Investor a
supplemented or amended prospectus meeting the requirements of the Securities
Act and relevant blue sky laws, or (ii) the date the Company notifies the
Investor that the Investor may resume offers and sales using the prior
prospectus, the Investor shall not offer or sell any Shares pursuant to the
Registration Statement (and shall return all copies of such prior prospectus to
the Company if requested to do so by it). Notwithstanding Section 4.1(c), the
Company may continue such "blackout" period or periods for such period of time
as the Company considers reasonably necessary and in its best interest due to
circumstances then existing, or simply due to the fact that
amendments/supplements of a Registration Statement/prospectus cannot be prepared
instantly; but in no event may the Company impose "blackouts" on the Investor
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for any period of ten or more consecutive business days or totaling more than 20
days in any 12 month period (plus any "Permitted Blackouts" as defined in the
Registration Rights Agreement dated as of December 21, 1998 between the Company,
Castle Creek Technology Partners LLC and others).
(e) The Company shall not be required to apply for or obtain
blue sky registration in any state if in connection therewith or as a condition
thereto it must (i) qualify to do business in such state where it would not
otherwise be required to qualify, (ii) subject itself to general taxation in
such state, (iii) file a general consent to service of process in such state, or
(iv) make any change in its Certificate of Incorporation or Bylaws, which the
Company's Board of Directors determines to be contrary to the best interests of
the Company and its stockholders.
(f) Indemnification.
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a. The Company will indemnify the Investor, and each of the
officers and directors of, and each person controlling, the Investor, against
all claims, losses, expenses, damages and liabilities (or actions in respect
thereto) arising out of or based on (A) any untrue statements (or alleged untrue
statement) of a material fact contained in any prospectus contained in any
registration statement covering the Shares for resale, or based on any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (B) any
misrepresentation or breach of any representation or warranty given or made by
the Company in this Agreement, or (C) any allegation that the transactions
contemplated by this Agreement violated any agreement between the Company and
any third party, and will reimburse the Investor, each of its officers and
directors and each person
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controlling the Investor, for any reasonable legal and any other expenses
incurred in connection with investigating, defending or settling any such claim,
loss, damage, liability or action, provided that the Company will not be liable
in any such case to the extent that any such claim, loss, damage or liability is
caused by any untrue statement or omission based upon written information
furnished to the Company by the Investor specifically for use therein in the
prospectus.
b. The Investor will indemnify the Company, each of its
directors and officers, and each person who controls the Company within the
meaning of the Securities Act, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereof) arising out of or based on (A) any
untrue statement (or alleged untrue statement) of a material fact contained in
any such prospectus, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (B) any sale of Shares which violates (or allegedly
violates) the Securities Act because of violation of the prospectus delivery
requirement or because more or less than the information in such prospectus is
given (or alleged to be given) in connection with the sale, or (C) any
misrepresentation or breach of any representation or warranty given or made by
the Investor in this Agreement, and will reimburse the Company, and such
directors, officers, or controlling persons, for any reasonable legal or any
other expenses incurred in connection with investigating, defending or settling
any such claim, loss, damage, liability or action, but in the case of subsection
(f)(ii)(A) to the extent, and only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
prospectus in reliance upon and in conformity with written information furnished
to the Company by the Investor specifically for use therein.
c. Each party entitled to indemnification under this Section
4.1(f) (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
indemnified party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at the Indemnified Party's expense, and provided further that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations hereunder, unless such failure
resulted in actual detriment to the Indemnifying Party. The Indemnified Party
shall provide all cooperation reasonably requested for the defense of the claim
or litigation. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. An Indemnified Party shall not decline any settlement complying with
the foregoing if it requires nothing of the Indemnified Party other than the
payment of money (which is in fact paid by the Indemnifying Party) and does not
include an admission of liability.
d. In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which any person or
entity entitled to indemnification
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under Section 4.1(f) makes a claim for indemnification pursuant to this Section
4.1(f) but it is judicially determined (by entry of a final judgment or decree
by a court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 4.1(f) provides
for indemnification in such case; then, and in such case, the party that would
otherwise be required to indemnify under Section 4.1(f) will contribute to the
aggregate losses, claims, damages or liabilities to which the other parties may
be subject (after contribution from others) in such proportion as is appropriate
to reflect the relative fault of the parties in connection with the losses
suffered, as well as any other relevant equitable considerations.
4.2 Deliverables Upon Effectiveness. When and if the SEC declares the
Registration Statement effective, the Company shall promptly deliver to the
Investor:
(a) A certificate signed by the President of the Company and
that the Registration Statement is effective and, to his knowledge, no stop
order with respect to the Registration Statement has been issued and no
proceedings therefor have been instituted.
(b) A legal opinion of Brobeck, Phleger & Harrison LLP, counsel
to the Company, in substantially the form of Exhibit B.
(c) Such number of copies of the Registration Statement and
(from time to time) of each amendment and supplement thereto, such number of
copies of the prospectus (including (from time to time) any supplemental or
amended prospectus) included in such Registration Statement, and such other
related documents as the Investor may reasonably request in writing in order to
facilitate the disposition of the Shares by the Investor.
4.3 Current Public Information. As long as the Investor owns any
Shares, the Company shall use its best efforts to properly file all SEC Reports,
or otherwise make available "adequate current public information" about itself,
within the meaning of Rule 144(c) under the Securities Act, to potentially make
available to the Investor the benefits of certain rules and regulations of the
SEC which may permit the sale of the Shares without registration.
4.4 Stock Option Matters. The Company's Board of Directors shall,
within thirty (30) days after the Closing, adopt amendments to the Company's
stock option plans and the Company's By-laws to provide that, unless approved by
the holders of a majority of the shares present and entitled to vote at a duly
convened meeting of the stockholders, the Company shall not grant any stock
options with an exercise price that is less than 100% of the fair market value
of the underlying stock on the date of grant or reduce the exercise price of any
stock option granted under any existing or future stock option plan. This By-
law may not be amended or repealed without the affirmative vote of the holders
of a majority of the shares present and entitled to vote at a duly convened
meeting of stockholders.
5. Conditions of the Investor's Obligations at Closing. The obligations
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of the Investor under Section 1 of this Agreement are subject to the fulfillment
at or before the Closing of each of the following conditions, any of which may
be waived in writing by the Investor:
5.1 Bringdown. The Company's representations and warranties in
Section 2 shall be true in all material respects, as if made on and as of the
date of the Closing. The
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Company shall have performed or fulfilled in all material respects all
agreements, obligations and conditions contained herein required to be performed
or fulfilled by the Company before such Closing.
5.2 Blue Sky Compliance. The Company shall be exempt from or have
complied with the registration/qualification requirements of and be effective
under all blue sky laws applicable to the offer and sale of the Shares to the
Investor.
5.3 Compliance Certificate. The Company shall have delivered to the
Investor a certificate dated as of the date of the Closing signed by the Chief
Executive Officer or President of the Company certifying that, to his knowledge,
the conditions set forth in Sections 5.1, 5.2, 5.5, 5.6, and 5.7 have been
satisfied.
5.4 Opinion of Counsel. There shall have been delivered to the
Investors an opinion of Brobeck, Phleger & Harrison LLP, counsel to the Company,
in substantially the form of Exhibit A.
5.5 No Order Pending. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement.
5.6 No Material Litigation. During the period from the date of this
Agreement to the Closing, no material litigation shall have been initiated
challenging the Company's ownership or its right to use or distribute the core
technology of the Company's products, and the Company shall have not received
any written threat of such litigation or any written claim so challenging the
Company's rights.
5.7 No Fraud or Malfeasance. During the period from the date of this
Agreement to the Closing, (a) none of the Company's officers or directors shall
have been removed for fraud or malfeasance in performance of his or her duties
with respect to the affairs of the Company and (b) no new legal proceedings
against any officers or directors of the Company for fraud or malfeasance in the
performance of his or her duties with respect to the affairs of the Company
shall have been instituted by the Company or its stockholders.
6. Conditions of the Company's Obligations at Closing. The obligations of
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the Company under Section 1 of this Agreement are subject to the fulfillment at
or before the Closing of each of the following conditions, any of which may be
waived in writing by the Company:
6.1 Bringdown. The Investor's representations and warranties in
Section 3 shall be true in all material respects, as if made on and as of the
date of the Closing.
6.2 Blue Sky Compliance. The Company shall be exempt from or have
complied with the registration/qualification requirements of and be effective
under all blue sky laws applicable to the offer and sale of the Shares to the
Investor.
6.3 No Order Pending. There shall not then be in effect any order
enjoining or restraining the transactions contemplated by this Agreement.
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7. Miscellaneous.
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7.1 Entire Agreement; Successors and Assigns. This Agreement
constitutes the entire contract between the Company and the Investor relative to
the subject matter hereof. Any previous or contemporaneous agreements,
understandings, promises and representations (whether written or oral) with
regard to such subject between the Company and the Investor are superseded by
this Agreement.
7.2 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California applicable to contracts
entered into and wholly to be performed within the State of California by
California residents.
7.3 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7.4 Headings. The headings of the Sections and subsections of this
Agreement are for convenience and shall not determine the interpretation of this
Agreement.
7.5 Notices. Any notice required or permitted hereunder shall be
given in writing and shall be conclusively deemed effectively given upon
personal delivery, or, if made by registered or certified United States mail,
postage prepaid, four business days after mailing, or if made by overnight
carrier, one business day after sending, in all instances addressed (i) if to
the Company, as set forth below the Company's name on the signature page of this
Agreement, and (ii) if to the Investor, as set forth below the Investor's name
on the signature page to this Agreement, or at such other address as the Company
or the Investor may designate by ten days' advance written notice to the
Investor or the Company, respectively.
7.6 Survival of Warranties. The representations and warranties of the
parties contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing for three years;
provided, however, that such representations and warranties need only be
accurate as of the date of such execution and delivery.
7.7 Amendment of Agreement. Any provision of this Agreement may be
modified or amended, at any time, by a written instrument signed by the Company
and by the Investor, and not in any other way.
7.8 Fees and Expenses. The Company and the Investor will each bear
their own fees and expenses in connection with the transactions contemplated by
this Agreement.
7.9 Finders' Fees. The Company will hold the Investor harmless from
all finders' or brokers' fees in connection with the sale of the Shares to the
Investor.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
PIPES Purchase Agreement as of the day and year first above written.
P-COM, INC., a Delaware corporation
By: /s/ George P. Roberts
--------------------------------------
Title: Chairman and Chief Executive Officer
-------------------------------------
Address: 3175 S. Winchester Boulevard
Campbell, CA 95008
Attention: Chief Financial Officer
STATE OF WISCONSIN INVESTMENT BOARD, a Wisconsin
state agency
By: /s/ John F. Nelson
------------------
Title: Investment Director
-------------------
Address: 121 East Wilson Street
P.O. Box 7842
Madison, WI 53707
Fax no.: (608) 266-2436
<PAGE>
EXHIBIT A
August 11, 2000
State of Wisconsin Investment Board
P.O. Box 7842
Madison, Wisconsin 53707
Ladies and Gentlemen:
We have acted as counsel for P-Com, Inc., a Delaware corporation (the
"Company"), in connection with the issuance and sale to you of 3,000,000 shares
of its common stock, par value $.0001 per share, pursuant to the Common Stock
PIPES Purchase Agreement dated August 11, 2000 (the "Stock Purchase Agreement")
between the Company and you. This opinion letter is being rendered to you
pursuant to Section 5.4 of the Stock Purchase Agreement in connection with the
Closing of the sale of the Shares. Capitalized terms not otherwise defined in
this opinion letter have the meanings given them in the Stock Purchase
Agreement.
In connection with the opinions expressed herein, we have made such
examination of matters of law and of fact as we considered appropriate or
advisable for purposes hereof. As to matters of fact material to the opinions
expressed herein, we have relied upon the representations and warranties as to
factual matters contained in and made by the Company pursuant to the Stock
Purchase Agreement and upon certificates and statements of government officials
and of officers of the Company. We have also examined originals or copies of
such corporate documents or records of the Company as we have considered
appropriate for the opinions expressed herein. We have assumed for the purposes
of this opinion letter the genuineness of all signatures, the legal capacity of
natural persons, the authenticity of the documents submitted to us as originals,
the conformity to the original documents of all documents submitted to us as
certified, facsimile or photostatic copies, and the authenticity of the
originals of such copies.
In rendering this opinion letter we have also assumed: (A) that the Stock
Purchase Agreement has been duly and validly executed and delivered by you or on
your behalf, that you have the power to enter into and perform all your
obligations thereunder, and that the Stock Purchase Agreement constitutes a
valid, legal, binding and enforceable obligation upon you; (B) that the
representations and warranties made in the Stock Purchase Agreement by you are
true and correct; and (C) that any wire transfers, drafts or checks tendered by
you will be honored.
As used in this opinion letter, the expression "we are not aware" or the
phrase "to our knowledge", or any similar expression or phrase with respect to
our knowledge of matters of fact, means as to matters of fact that, based on the
actual knowledge of individual attorneys within the firm principally responsible
for handling matters for the Company (and not including any constructive or
imputed notice of any information), and after an examination of documents
referred to herein and after inquiries of certain officers of the Company, no
facts have been disclosed to us that have caused us to conclude that the
opinions expressed are factually
<PAGE>
incorrect; but beyond that we have made no factual investigation for the
purposes of rendering this opinion letter. Specifically, but without limitation,
we have not searched the dockets of any courts and we have made no inquiries of
securities holders or employees of the Company, other than such officers.
This opinion letter relates solely to the laws of the State of California,
the General Corporation Law of the State of Delaware and the federal law of the
United States and we express no opinion with respect to the effect or
application of any other laws. Special rulings of authorities administering
such laws or opinions of other counsel have not been sought or obtained.
Based upon our examination of and reliance upon the foregoing and subject
to the limitations, exceptions, qualifications and assumptions set forth below
and except as set forth in the Stock Purchase Agreement or the Disclosure
Letter, we are of the opinion that as of the date hereof:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and the Company has
the requisite corporate power and authority to own its properties and to conduct
its business as, to our knowledge, it is presently conducted. The Company is
qualified to do business as a foreign corporation in the state of California.
2. The Company has the requisite corporate power and authority to
execute, deliver and perform the Stock Purchase Agreement. The Stock Purchase
Agreement has been duly and validly authorized by the Company, duly executed and
delivered by an authorized officer of the Company and constitutes a legal, valid
and binding obligation of the Company, enforceable by you against the Company in
accordance with its terms.
3. The Shares have been duly authorized and, upon purchase at the Closing
pursuant to the terms of the Stock Purchase Agreement, will be validly issued,
nonassessable and fully paid, and free of any liens created by the Company.
4. The Company's execution and delivery of, and its performance and
compliance as of the date hereof with the terms of, the Stock Purchase Agreement
do not violate any provision of any federal, Delaware corporate or California
law, rule or regulation applicable to the Company or any provision of the
Company's Restated Certificate of Incorporation or Bylaws and do not conflict
with or constitute a default under the provisions of any judgment, writ, decree
or order specifically identified in the SEC Reports or the material provisions
of any of the material agreements specifically identified in the SEC Reports.
5. Other than in connection with any securities laws, all consents,
approvals, permits, orders or authorizations of, and all qualifications by and
registrations with, any federal or Delaware corporate or California state
governmental authority on the part of the Company required in connection with
the execution and delivery of the Stock Purchase Agreement and consummation at
the Closing of the transactions contemplated by the Stock Purchase Agreement
A-2
<PAGE>
have been obtained, and are effective, and we are not aware of any proceedings,
or written threat of any proceedings, that question the validity thereof.
6. Based in part upon the representations of you in the Stock Purchase
Agreement, the offer and sale of the Shares to you pursuant to the terms of the
Stock Purchase Agreement are exempt from the registration requirements of
Section 5 of the Securities Act of 1933, as amended, and from the qualification
requirements of the California Corporate Securities Law of 1968, as amended.
Our opinions expressed above are specifically subject to the following
limitations, exceptions, qualifications and assumptions:
(A) The legality, validity, binding nature and enforceability of the
Company's obligations under the Stock Purchase Agreement may be subject to or
limited by (1) bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent transfer and other similar laws affecting the rights of creditors
generally; (2) general principles of equity (whether relief is sought in a
proceeding at law or in equity), including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, and the discretion of
any court of competent jurisdiction in awarding specific performance or
injunctive relief and other equitable remedies; and (3), without limiting the
generality of the foregoing, the effect of California court decisions and
statutes which indicate that provisions of the Stock Purchase Agreement which
permit you to take action or make determinations may be subject to a requirement
that such action be taken or such determinations be made on a reasonable basis
in good faith or that it be shown that such action is reasonably necessary for
your protection.
(B) We express no opinion as to the Company's compliance or noncompliance
with applicable federal or state antifraud or antitrust statutes, laws, rules
and regulations.
(C) We express no opinion concerning the past, present or future fair
market value of any securities.
(D) We express no opinion as to the enforceability under certain
circumstances of any provisions indemnifying a party against, or requiring
contributions toward, that party's liability for its own wrongful or negligent
acts, or where indemnification or contribution is contrary to public policy or
prohibited by law. In this regard, we advise you that in the opinion of the
Securities and Exchange Commission, indemnification of directors, officers and
controlling persons of an issuer against liabilities arising under the
Securities Act of 1933, as amended, is against public policy and is therefore
unenforceable.
(E) We express no opinion as to the enforceability under certain
circumstances of any provisions prohibiting waivers of any terms of the Stock
Purchase Agreement other than in writing, or prohibiting oral modifications
thereof or modification by course of dealing. In addition, our opinions are
subject to the effect of judicial decisions which may permit the introduction of
extrinsic evidence to interpret the terms of written contracts.
A-3
<PAGE>
(F) We express no opinion as to the effect of Section 1670.5 of the
California Civil Code or any other California law, federal law or equitable
principle which provides that a court may refuse to enforce, or may limit the
application of, a contract or any clause thereof which the court finds to have
been unconscionable at the time it was made or contrary to public policy.
(G) We express no opinion as to your compliance with any Federal or state
law relating to your legal or regulatory status.
(H) We express no opinion as to the compliance of the Company, the
Investor or the sale of the Common Stock to the Investor with the provisions of
the Small Business Investment Act of 1958, as amended, or any of the regulations
promulgated thereunder.
(I) We express no opinion as to the effect of subsequent issuances of
securities of the Company, to the extent that further issuances which may be
integrated with the Closing may include purchasers that do not meet the
definition of "accredited investors" under Rule 501 of Regulation D and
equivalent definitions under state securities or "blue sky" laws.
(J) We express no opinion as to Section 7.2 of the Stock Purchase
Agreement to the extent that it purports to exclude conflict of law principles
under California law.
(K) With your permission, we express no opinion regarding the Hart-Scott-
Rodino Antitrust Improvements Act of 1976.
This opinion letter is rendered as of the date first written above solely
for your benefit in connection with the Stock Purchase Agreement and may not be
delivered to, quoted or relied upon by any person other than you, or for any
other purpose, without our prior written consent. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company or the
Shares. We assume no obligation to advise you of facts, circumstances, events
or developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinions expressed herein.
We advise you that some of our lawyers are stockholders of the Company.
Very truly yours,
BROBECK, PHLEGER & HARRISON LLP
A-4
<PAGE>
EXHIBIT B
_____________, 2000
State of Wisconsin Investment Board
P.O. Box 7842
Madison, Wisconsin 53707
Ladies and Gentlemen:
We have acted as counsel for P-Com, Inc., a Delaware corporation (the
"Company"), in connection with the issuance and sale to you of certain Shares of
its common stock, par value $.0001 per share, pursuant to the Common Stock
PIPES Purchase Agreement dated August 11, 2000 (the "Stock Purchase Agreement")
between the Company and you and in connection with the Company's registration
with the SEC of such Shares for resale by you. This opinion letter is being
rendered to you pursuant to Section 4.2(b) of the Stock Purchase Agreement in
connection with the SEC declaring effective the Registration Statement for your
resale of the Shares. Capitalized terms not otherwise defined in this opinion
letter have the meanings given them in the Stock Purchase Agreement.
In our capacity as counsel to the Company, we have examined, among other
things, originals, or copies identified to our satisfaction as being true
copies, of the Registration Statement on Form S-3 (File No. 333-____________)
initially filed by the Company with the SEC on ____________, 2000, for the
purpose of registering the resale of the Shares under the Securities Act;
Amendment No. 1 to such Registration Statement filed with the SEC on
_____________, 2000; Amendment No. 2 to such Registration Statement filed with
the SEC on _____________, 2000; and oral advice on ______________, 2000, from an
SEC staff examiner, that the SEC had declared such Registration Statement, as so
amended, effective as of ______ p.m., Washington, D.C. time, on _____________,
2000.
As used in this opinion letter, the phrase "to our knowledge" means as to
matters of fact that, based on the actual knowledge of individual attorneys
within the firm principally responsible for handling matters for the Company
(and not including any constructive or imputed notice of any information), no
facts have been disclosed to us that have caused us to conclude that the
opinions expressed are factually incorrect; but our affirmative factual
investigation for the purpose of rendering this opinion letter has been limited
to obtaining (a) oral advice received on ___________, from an SEC staff
examiner, that the SEC had declared such Registration Statement, as amended,
effective at _____ p.m. Washington, D.C. time, on _________ , 2000 and (b) oral
advice received on ___________, 2000 from an SEC staff examiner that there is no
stop order suspending the effectiveness of the Registration Statement.
Based upon our examination of and reliance upon the foregoing, we are of
the opinion that as of the date hereof:
1. The Registration Statement has become effective under the Securities
Act and, to our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose are
pending before or contemplated by the SEC.
A-5
<PAGE>
This opinion letter is rendered as of the date first written above solely
for your benefit in connection with the Stock Purchase Agreement and the
Registration Statement and may not be delivered to, quoted or relied upon by any
person other than you, or for any other purpose, without our prior written
consent. Our opinion is expressly limited to the matters set forth above and we
render no opinion, whether by implication or otherwise, as to any other matters
relating to the Company, the Stock Purchase Agreement, the Registration
Statement or the Shares. We assume no obligation to advise you of facts,
circumstances, events or developments which hereafter may be brought to our
attention and which may alter, affect or modify the opinions expressed herein.
Very truly yours,
BROBECK, PHLEGER & HARRISON LLP
A-6
