**Exhibit4.60**

 

**NOTE PURCHASE AGREEMENT**

 

NOTE PURCHASE AGREEMENT (this“**Agreement**”), dated as of March 26, 2003, between SPEEDCOM Wireless Corporation, a corporation organized under the laws of the State of Delaware (the “**Company**”), and P-Com, Inc., a corporation organized under thelaws of the State of Delaware (the “**Purchaser**”). 

 

WHEREAS: 

 

A. The Companyand the Purchaser are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by the provisions of Regulation D (“**Regulation D**”), as promulgated by the United States Securitiesand Exchange Commission (the “**SEC**”) under the Securities Act of 1933, as amended (the “**Securities Act**”). 

 

B. The Company desires to issue and sell, and the Purchaser desires to purchase, upon the terms and conditions stated in this Agreement, aconvertible promissory note, in the form attached hereto as Exhibit A (the “**Note**”), in the principal face amount of $400,000, which Note shall be convertible into shares of the Company’s common stock, par value $0.001per share (the “**Common Stock**”). The shares of Common Stock issuable upon conversion of or otherwise pursuant to the Note are referred to herein as the “**Conversion Shares**.” The Note and the Conversion Shares arecollectively referred to herein as the “**Securities**” and each of them are individually referred to herein as a “**Security**.” This Agreement and the Note are collectively referred to herein as the “**TransactionDocuments**.” 

 

NOW, THEREFORE, inconsideration of the premises and mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Purchaser hereby agree as follows: 

 

1.     PURCHASE AND SALE OF SECURITIES.

 

(a) Purchase and Sale of Securities.Subject to the terms and conditions hereof, at the Closing (as defined in Section 1(b) below), the Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, a Note in the principal face amount equal to$400,000, in consideration for the payment by the Purchaser of a purchase price equal to such principal face amount (the “**Purchase Price**”). 

 

(b) The Closing. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the closing of thetransactions contemplated hereby (the “**Closing**”) shall take place at the offices of Purchaser, on the date hereof, or at such other time or place as the Company and the Purchaser may mutually agree (such date is hereinafterreferred to as the “**Closing Date**”). 

 

2.    PURCHASER’S REPRESENTATIONS AND WARRANTIES. The Purchaser represents and warrants to the Company as follows: 

 

(a) Purchase for Own Account, Etc The Purchaser is acquiring the Note for the Purchaser’s own account and not with a presentview towards the public sale or distribution thereof, except pursuant to sales that are exempt from the registration requirements of the Securities Act and/or sales registered under the Securities Act. The Purchaser understands that the Purchasermust bear the economic risk of this investment indefinitely, unless the Securities are registered pursuant to the Securities Act and any applicable state securities or blue sky laws or an exemption from such registration is available, and that theCompany has no present intention of registering the resale of any such Securities other than as contemplated in Section 4(o). Notwithstanding anything in this Section 2(a) to the contrary, by making the representations herein, the Purchaser does notagree to hold the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption from the registration requirements underthe Securities Act. 

 

(b) Accredited InvestorStatus. The Purchaser is an “**Accredited Investor**” as that term is defined in Rule 501(a) of Regulation D under the Securities Act. 

 

(c) Reliance on Exemptions. The Purchaser understands that the Securities are being offered and sold to the Purchaser in relianceupon specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties,agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Securities. 

 

(d) Information. The Purchaser or its counsel, if any,have been furnished all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Securities which have been specifically requested by the Purchaser or its counsel. Neither suchinquiries nor any other investigation conducted by the Purchaser or its counsel or any of its representatives shall modify, amend or affect the Purchaser’s right to rely on the Company’s representations and warranties contained in Section3 below. The Purchaser understands that the Purchaser’s investment in the Securities involves a high degree of risk. 

 

(e) Governmental Review. The Purchaser understands that no United States federal or state agency or any other government orgovernmental agency has passed upon or made any recommendation or endorsement of the Securities. 

 

(f) Transfer or Resale. The Purchaser understands that (i) except as provided in Section 4(o), the sale or resale of the Securities have not been and are not being registered under theSecurities Act or any state securities laws, and the Securities may not be transferred unless (A) the transfer is made pursuant to and as set forth in an effective registration statement under the Securities Act covering the Securities; or (B) thePurchaser shall have delivered to the Company an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the Securities to be sold or 

 

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transferred may be sold ortransferred pursuant to an exemption from such registration; or (C) sold under and in compliance with Rule 144 promulgated under the Securities Act (or a successor rule) (“**Rule 144**”); or (D) sold or transferred in accordance withapplicable securities laws to an affiliate of the Purchaser who agrees to sell or otherwise transfer the Securities only in accordance with the provisions of this Section 2(f) and who is an Accredited Investor; and (ii) neither the Company nor anyother person is under any obligation to register such Securities under the Securities Act or any state securities laws (other than as provided in Section 4(o)). Notwithstanding the foregoing or anything else contained herein to the contrary, theSecurities may be pledged as collateral in connection with a bona fide margin account or other lending arrangement, provided such pledge is consistent with applicable laws, rules and regulations. 

 

(g) Legends. The Purchaser understands that, until suchtime as the Conversion Shares have been registered under the Securities Act (including registration pursuant to Rule 416 thereunder) or otherwise may be sold by the Purchaser under Rule 144(k), the certificates for the Conversion Shares shall bear arestrictive legend in substantially the following form: 

 

The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state of the United States or in any other jurisdiction. The securities representedhereby may not be offered, sold or transferred in the absence of an effective registration statement for the securities under applicable securities laws unless offered, sold or transferred pursuant to an available exemption from the registrationrequirements of those laws. 

 

The Company agreesthat it shall, immediately prior to a registration statement covering the Securities being declared effective, deliver to its transfer agent an opinion letter of counsel, opining that at any time such registration statement is effective, thetransfer agent shall issue, in connection with the issuance of the Conversion Shares, certificates representing such Conversion Shares without the restrictive legend above, provided such Conversion Shares are to be sold pursuant to the prospectuscontained in such registration statement. Upon receipt of such opinion, the Company shall cause the transfer agent to confirm, for the benefit of the holders, that no further opinion of counsel is required at the time of transfer in order to issuesuch shares without such restrictive legend. 

 

Thelegend set forth above shall be removed and the Company shall issue a certificate without such legend to the holder of any Security upon which it is stamped, if (unless otherwise required by state securities laws) (i) the sale of such Security isregistered under the Securities Act (including registration pursuant to Rule 416 thereunder); (ii) such holder provides the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparabletransactions, to the effect that a public sale or transfer of such Security may be made without registration under the Securities Act; or (iii) such holder provides the Company with reasonable assurances that such Security can be sold under Rule144. In the event the above legend is removed from any Security and thereafter the effectiveness of a registration statement covering such Security is suspended or the Company determines that a supplement or amendment thereto is required byapplicable securities laws, then upon reasonable advance written notice to the Purchaser the Company may require that the above legend be 

 

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placed on any such Securitythat cannot then be sold pursuant to an effective registration statement or under Rule 144 and the Purchaser shall cooperate in the replacement of such legend. Such legend shall thereafter be removed when such Security may again be sold pursuant toan effective registration statement or under Rule 144. 

 

(h) Authorization; Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Purchaser and is a valid and binding agreement of the Purchaser enforceable against the Purchaser inaccordance with its terms. 

 

(i) Residency.The Purchaser is a corporation organized under the laws of the State of Delaware, and its principal place of business is located within the State of California. 

 

The Purchaser’s representations and warranties made in this Article 2 are made solely for the purpose ofpermitting the Company to make a determination that the transactions contemplated hereby comply with applicable U.S. federal and state securities laws and not for any other purpose. The Company may not rely on such representations and warranties forany other purpose. 

 

3.     REPRESENTATIONSAND WARRANTIES OF THE COMPANY. Except as set forth in the Company’s Select SEC Documents (as defined in Section 3(f) below) or on a Disclosure Schedule executed and delivered by the Company to the Purchaser within five business daysfollowing the Closing in accordance with Section 4(p) hereof (the “**Disclosure Schedule**”), the Company represents and warrants to the Purchaser as follows: 

 

(a) Organization and Qualification. The Company and each of its direct or indirect subsidiaries(collectively, the **“Subsidiaries”**) is a corporation duly organized and existing in good standing under the laws of the jurisdiction in which it is incorporated, and has the requisite corporate power to own its properties and tocarry on its business as now being conducted. The Company and each of its Subsidiaries is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which the nature of the business conducted by it makessuch qualification necessary and where the failure so to qualify has had or could reasonably be expected to have a Material Adverse Effect. “**Material Adverse Effect**” means any material adverse effect on (i) the Securities, (ii) theability of the Company to perform its obligations hereunder or under the other Transaction Documents or (iii) the business, operations, properties, prospects, financial condition or results of operations of the Company and its Subsidiaries, taken asa whole. 

 

(b) Authorization; Enforcement.(i) The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and the other Transaction Documents, to issue and sell the Note in accordance with the terms hereof and, to issue theConversion Shares upon conversion of the Note in accordance with the terms of such Note; (ii) the execution, delivery and performance of this Agreement and the other Transaction Documents by the Company and the consummation by it of the transactionscontemplated hereby and thereby (including, without limitation, the issuance of the Note and the issuance and reservation for issuance of the Conversion Shares) have been duly authorized by the Company’s Board of Directors and no furtherconsent or authorization of the Company, its Board of Directors, or any committee of the Board of Directors is required, and (iii) this Agreement 

 

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constitutes, and, uponexecution and delivery by the Company of the other Transaction Documents, such agreements will constitute, valid and binding obligations of the Company enforceable against the Company in accordance with their terms. Neither the execution, deliveryor performance by the Company of this Agreement or the other Transaction Documents nor the consummation by it of the transactions contemplated hereby or thereby (including, without limitation, the issuance of the Note or the issuance or reservationfor issuance of the Conversion Shares) requires any consent or authorization of the Company’s stockholders. 

 

(c) Capitalization. The capitalization of the Company as of the date hereof, including the authorized capital stock, the number ofshares issued and outstanding, the number of shares issuable and reserved for issuance pursuant to the Company’s stock option plans, the number of shares issuable and reserved for issuance pursuant to securities (other than the Note)exercisable or exchangeable for, or convertible into, any shares of capital stock and the number of shares to be reserved for issuance upon conversion of the Note is set forth in Section 3(c) of the Disclosure Schedule. All of suchoutstanding shares of capital stock have been, or upon issuance in accordance with the terms of any such warrants, options or preferred stock, will be, validly issued, fully paid and non-assessable. No shares of capital stock of the Company(including the Conversion Shares) are subject to preemptive rights or any other similar rights of the stockholders of the Company or any liens or encumbrances. Except for the Securities and as set forth in Section 3(c) of the DisclosureSchedule, as of the date of this Agreement, (i) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exercisable orexchangeable for, any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of itsSubsidiaries, nor are any such issuances or arrangements contemplated, and (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under theSecurities Act (other than as provided in Section 4(o)). Section 3(c) of the Disclosure Schedule sets forth all of the Company issued securities or instruments containing antidilution or similar provisions that will be triggered by, andall of the resulting adjustments that will be made to such securities and instruments as a result of, the issuance of the Securities in accordance with the terms of this Agreement or the Note. Except for the Demand Notes (as defined in the Note),there are no outstanding forms of indebtedness of the Company, secured by a security interest in all or a portion of the Company’s assets. The Company has furnished to the Purchaser a true and correct copy of the Company’s Certificate ofIncorporation as in effect on the date hereof (“**Certificate of Incorporation**”), the Company’s Bylaws as in effect on the date hereof (the “**Bylaws**”), and all other instruments and agreements governing securitiesconvertible into or exercisable or exchangeable for capital stock of the Company. 

 

(d) Issuance of Shares. The Note is duly authorized and, upon issuance in accordance with the terms of this Agreement, will be validly issued and free from all taxes, liens, claims andencumbrances (other than restrictions on transfer contained in this Agreement or the Note) and will not be subject to preemptive rights, rights of first refusal or other similar rights of stockholders of the Company and will not impose personalliability on the holders thereof. The Conversion Shares are duly authorized and reserved for issuance, and, upon conversion of the Note in accordance with the terms thereof, will be validly issued, fully paid and non-assessable, and free from alltaxes, liens, claims and encumbrances (other than restrictions on transfer 

 

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contained in this Agreement)and will not be subject to preemptive rights, rights of first refusal or other similar rights of stockholders of the Company and will not impose personal liability upon the holder thereof. 

 

(e) No Conflicts. The execution, delivery and performance of this Agreement and the other TransactionDocuments by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance and reservation for issuance, as applicable, of the Note and Conversion Shares) will not(i) result in a violation of the Certificate of Incorporation or Bylaws or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination,amendment (including, without limitation, the triggering of any anti-dilution provisions), acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or result in a violationof any law, rule, regulation, order, judgment or decree (including United States federal and state securities laws and regulations and rules or regulations of any self-regulatory organizations to which either the Company or its securities aresubject) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected (except, with respect to clause (ii), for such conflicts, defaults, terminations,amendments, accelerations, cancellations and violations that have not had and could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect). Neither the Company nor any of its Subsidiaries is in violation ofits Certificate of Incorporation, Bylaws or other organizational documents and neither the Company nor any of its Subsidiaries is in default (and no event has occurred which, with notice or lapse of time or both, would put the Company or any of itsSubsidiaries in default) under, nor has there occurred any event giving others (with notice or lapse of time or both) any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Companyor any of its Subsidiaries is a party. The businesses of the Company and its Subsidiaries are not being conducted, and shall not be conducted so long as the Purchaser owns the Note, in violation of any law, ordinance or regulation of anygovernmental entity, except for possible violations the sanctions for which either singly or in the aggregate have not had and could not reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries possess allcertificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities which are material to conduct its business, and neither the Company nor any of its Subsidiaries has received any written notice ofany proceeding relating to the revocation or modification of any such certificate, authorization or permit. The Company and its board of directors have taken all necessary action, if any, in order to render inapplicable any control shareacquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under its Certificate of Incorporation or the laws of the state of its incorporation which is or couldbecome applicable to the Purchaser as a result of the transactions contemplated by this Agreement, including without limitation, the Company’s issuance of the Securities and any and all Purchaser’s ownership of the Securities or thePurchaser’s ownership of the Common Stock. Except as specifically contemplated by this Agreement, the Company is not required to obtain any consent, approval, authorization or order of, or make any filing or registration with, any court orgovernmental agency or any regulatory or self regulatory agency in order for it to execute, deliver or perform any of its obligations under this Agreement or the other Transaction Documents, in each case in accordance with the terms hereof orthereof. 

 

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(f) SECDocuments, Financial Statements. (i) From December 31, 1997 to December 30, 2000, to the knowledge of the Company’s officers after due inquiry, and (ii) since December 31, 2000, the Company has timely filed (within applicable extensionperiods) all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “**Exchange Act**”) (all ofthe foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein, being hereinafter referred to herein as the “**SECDocuments**”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the SEC promulgatedthereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary inorder to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the statements made in any such SEC Documents is, or has been, required to be amended or updated under applicable law (except forsuch statements as have been amended or updated in subsequent filings made prior to the date hereof). As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respectswith applicable accounting requirements and the published rules and regulations of the SEC applicable with respect thereto. Such financial statements have been prepared in accordance with U.S. generally accepted accounting principles(“**GAAP**”), consistently applied during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may notinclude footnotes or may be condensed or summary statements) and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results oftheir operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to immaterial year-end audit adjustments). Except as set forth in the financial statements of the Company included in the Select SEC Documents(as defined below), the Company has no liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to the date of such financial statements and (ii) obligations under contracts andcommitments incurred in the ordinary course of business and not required under GAAP to be reflected in such financial statements, which liabilities and obligations referred to in clauses (i) and (ii), individually or in the aggregate, are notmaterial to the financial condition or operating results of the Company. As used in this Agreement, the term “**Select SEC Documents**” shall mean the Company’s (A) Proxy Statement for its 2002 Annual Meeting, (B) Annual Report onForm 10-K for the fiscal year ending December 31, 2001, (C) Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and September 30, 2002, and (D) Current Reports on Form 8-K filed since December 31, 2001. 

 

(g) Absence of Certain Changes. Since December 31,2001, there has been no material adverse change and no material adverse development in the business, properties, operations, prospects, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole. The Companyhas not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any bankruptcy or receivership law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its

 

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creditors intend to initiateinvoluntary bankruptcy proceedings with respect to the Company or any of its Subsidiaries. 

 

(h) Transactions With Affiliates. None of the officers, directors, or employees of the Company is presently a party to any transaction with the Company or any of its Subsidiaries (other than forordinary course services solely in their capacity as employees, officers or directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to orfrom, or otherwise requiring payments to or from any such officer, director or employee or any corporation, partnership, trust or other entity in which any such officer, director, or employee has an ownership interest of five percent or more or isan officer, director, trustee or partner. 

 

(i)Absence of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body (including, without limitation, the SEC) pending or, to theknowledge of the Company or any of its Subsidiaries, threatened against or affecting the Company, any of its Subsidiaries, or any of their respective directors or officers in their capacities as such. There are no facts which, if known by apotential claimant or governmental authority, could give rise to a claim or proceeding which, if asserted or conducted with results unfavorable to the Company or any of its Subsidiaries, could reasonably be expected to have a Material AdverseEffect. 

 

(j) Intellectual Property. Eachof the Company and its Subsidiaries owns or is duly licensed to use all patents, patent applications, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, permits, inventions, discoveries,processes, scientific, technical, engineering and marketing data, object and source codes, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) and other similarrights and proprietary knowledge (collectively, “**Intangibles**”) necessary for the conduct of its business as now being conducted. To the best knowledge of the Company, neither the Company nor any Subsidiary of the Company infringesor is in conflict with any right of any other person with respect to any Intangibles. Neither the Company nor any of its Subsidiaries has received written notice of any pending conflict with or infringement upon such third party Intangibles. Thetermination of the Company’s ownership of, or right to use, any single Intangible could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has entered into any consent agreement,indemnification agreement, forbearance to sue or settlement agreement with respect to the validity of the Company’s or its Subsidiaries’ ownership or right to use its Intangibles and there is no reasonable basis for any such claim to besuccessful. The Intangibles are valid and enforceable and no registration relating thereto has lapsed, expired or been abandoned or canceled or is the subject of cancellation or other adversarial proceedings, and all applications therefor arepending and in good standing. The Company and its Subsidiaries have complied, in all material respects, with their respective contractual obligations relating to the protection of the Intangibles used pursuant to licenses. No person is infringing onor violating the Intangibles owned or used by the Company or its Subsidiaries. 

 

(k) Title. The Company and its Subsidiaries have good and marketable title in fee simple to all real property and good and merchantable title to all personal property owned by them that ismaterial to the business of the Company and its Subsidiaries, in each case free and 

 

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clear of all liens,encumbrances and defects, except for such liens, encumbrances and defects as do not, individually or in the aggregate, materially affect the value of such property and do not materially interfere with the use made and proposed to be made of suchproperty by the Company and its Subsidiaries. Any real property and facilities held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do notmaterially interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries. 

 

(l) Environmental Matters. There is no environmental litigation or other environmental proceeding pending or threatened by anygovernmental regulatory authority or others with respect to the current or any former business of the Company or its Subsidiaries or any partnership or joint venture currently or at any time affiliated with the Company or its subsidiaries. No stateof facts exists as to environmental matters or Hazardous Substances (as defined below) that involves the reasonable likelihood of a material capital expenditure by the Company or its Subsidiaries or that may otherwise have a Material Adverse Effect.No Hazardous Substances have been treated, stored or disposed of, or otherwise deposited, in or on the properties owned or leased by the Company or its Subsidiaries or by any partnership or joint venture currently or at any time affiliated with theCompany or its Subsidiaries in violation of any applicable environmental laws. The environmental compliance programs of the Company and its Subsidiaries comply in all respects with all environmental laws, whether federal, state or local, currentlyin effect. As used herein, “**Hazardous Substances**” means any substance, waste, contaminant, pollutant or material that has been determined by any governmental authority to be capable of posing a risk of injury to health, safety,property or the environment. 

 

(m)Disclosure. All information relating to or concerning the Company and/or any Subsidiary or Subsidiaries set forth in this Agreement or provided to the Purchaser pursuant to Section 2(d) hereof or otherwise in connection with the transactionscontemplated hereby is true and correct in all material respects and the Company has not omitted to state any material fact necessary in order to make the statements made herein or therein, in light of the circumstances under which they were made,not misleading. No event or circumstance has occurred or exists with respect to the Company or its Subsidiaries or their respective businesses, properties, prospects, operations or financial conditions, which has not been publicly disclosed but,under applicable law, rule or regulation, would be required to be disclosed by the Company in a registration statement filed on the date hereof by the Company under the Securities Act with respect to a primary issuance of the Company’ssecurities. 

 

(n) Acknowledgment RegardingPurchaser’s Purchase of the Securities. The Company acknowledges and agrees that the Purchaser is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement or the transactionscontemplated hereby, the relationship between the Company and the Purchaser is “arms-length” and any statement made by the Purchaser or any of its representatives or agents in connection with this Agreement and the transactionscontemplated hereby is merely incidental to the Purchaser’s purchase of Securities and has not been relied upon by the Company, its officers or directors in any way. The Company further acknowledges that the Company’s decision to enterinto this Agreement has been based solely on an independent evaluation by the Company and its representatives. 

 

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(o) FormSB-2 Eligibility. The Company is currently eligible to register the resale of its Common Stock on a registration statement filed on Form SB-2 under the Securities Act. 

 

(p) No General Solicitation. Neither the Company nor any distributor participating on theCompany’s behalf in the transactions contemplated hereby (if any) nor any person acting for the Company, or any such distributor, has conducted any “general solicitation,” as such term is defined in Regulation D, with respect to anyof the Securities being offered hereby. 

 

(q)No Integrated Offering. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales of any security or solicited any offers to buy any security undercircumstances that would require registration of the Securities being offered hereby under the Securities Act or cause this offering of Securities to be integrated with any prior offering of securities of the Company for purposes of the SecuritiesAct. 

 

(r) No Brokers. The Company hastaken no action which would give rise to any claim by any person for brokerage commissions or finder’s fees or for similar payments by the Purchaser relating to this Agreement or the transactions contemplated hereby. 

 

(s) Acknowledgment Regarding Securities. The number ofConversion Shares issuable upon conversion of the Note may increase in certain circumstances. The Company’s executive officers have studied and fully understand the nature of the Securities being sold hereunder. The Company acknowledges thatits obligation to issue Conversion Shares upon conversion of the Note in accordance with the terms of the Note is, other than as set forth in the Note, absolute and unconditional, regardless of the dilution that such issuance may have on theownership interests of other stockholders and the availability of remedies provided for in the Transaction Documents relating to a failure or refusal to issue Conversion Shares. Taking the foregoing into account, the Company’s Board ofDirectors has determined in its good faith business judgment that the issuance of the Note hereunder and the consummation of the other transactions contemplated hereby are in the best interests of the Company and its stockholders. The Company’sBoard of Directors and executive officers fully intend to honor their obligations hereunder to issue Conversion Shares upon conversion of the Note regardless of the dilution that such issuance may have on the ownership interests of otherstockholders and the availability of remedies provided for in the Transaction Documents relating to their failure or refusal to issue Conversion Shares. 

 

4.     COVENANTS. 

 

(a) Best Efforts. The parties shall use their best efforts timely to satisfy each of the conditions described in Sections 6 and 7of this Agreement. 

 

(b) Form D: Blue SkyLaws. The Company shall file with the SEC a Form D with respect to the Securities as required under Regulation D and provide a copy thereof to the Purchaser promptly after such filing. The Company shall, on or before the Closing Date, take suchaction as the Company shall reasonably determine is necessary to qualify the Securities for sale to the Purchaser pursuant to this Agreement under applicable securities or “blue sky” laws of the states of the United States or obtainexemption therefrom, and shall provide evidence of 

 

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any such action so taken tothe Purchaser on or prior to the Closing Date. Within two (2) trading days after the Closing Date, the Company shall file a Form 8-K concerning this Agreement and the transactions contemplated hereby, which Form 8-K shall attach this Agreement andits Exhibits as exhibits to such Form 8-K (the “**8-K Filing**”). From and after the 8-K Filing, the Company hereby acknowledges that the Purchaser shall not be in possession of any material nonpublic information received from theCompany, any of its Subsidiaries or any of its respective officers, directors, employees or agents, that is not disclosed in the 8-K Filing. The Company shall not, and shall cause each of its Subsidiaries and its and each of their respectiveofficers, directors, employees and agents not to, provide the Purchaser with any material nonpublic information regarding the Company or any of its Subsidiaries from and after the 8-K Filing without the express written consent of the Purchaser;*provided, however,* that if the Purchaser exercises its rights under Section 4(m) it shall be deemed to have given such express written consent. In the event of a breach of the foregoing covenant by the Company, any of its Subsidiaries, or anyof its or their respective officers, directors, employees and agents, in addition to any other remedy provided herein or in the other Transaction Documents, the Purchaser shall have the right to make a public disclosure, in the form of a pressrelease, public advertisement or otherwise, of such material nonpublic information without the prior approval by the Company, its Subsidiaries, or any of its or their respective officers, directors, employees or agents. The Purchaser shall not haveany liability to the Company, its Subsidiaries, or any of its or their respective officers, directors, employees, shareholders or agents for any such disclosure. Subject to the foregoing, neither the Company nor the Purchaser shall issue any pressreleases or any other public statements with respect to the transactions contemplated hereby; *provided, however,* that the Company shall be entitled, without the prior approval of the Purchaser, to make any press release or other publicdisclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith and (ii) as is required by applicable law and regulations (provided that in the case of clause (i) the Purchaser shall beconsulted by the Company in connection with any such press release or other public disclosure prior to its release). 

 

(c) Reporting Status. So long as the Purchaser beneficially owns any of the Securities, the Company shall timely file (withinapplicable extension periods) all reports required to be filed with the SEC pursuant to the Exchange Act, and the Company shall not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or therules and regulations thereunder would permit such termination. 

 

(d) Use of Proceeds. The Company shall use the proceeds from the issuance and sale of the Securities for general corporate purposes and working capital. Such proceeds shall not be used to (i) pay dividends; (ii) pay for anyincrease in executive compensation or make any loan or other advance to any officer, employee, shareholder, director or other affiliate of the Company, without the express approval of the Board of Directors acting in accordance with past practice;(iii) purchase debt or equity securities of any entity (including redeeming the Company’s own securities), except for (A) evidences of indebtedness issued or fully guaranteed by the United States of America and having a maturity of not morethan one year from the date of acquisition, (B) certificates of deposit, notes, acceptances and repurchase agreements having a maturity of not more than one year from the date of acquisition issued by a bank organized in the United Stateshaving capital, surplus and undivided profits of at least $500,000,000, (C) the highest-rated commercial paper having a maturity of not more than one year from the date of 

 

11 

 

acquisition, and (D)“Money Market” fund shares, or money market accounts fully insured by the Federal Deposit Insurance Corporation and sponsored by banks and other financial institutions, provided that the investments consist principally of the types ofinvestments described in clauses (A), (B), or (C) above; or (iv) make any investment not directly related to the current business of the Company. 

 

(e) Financial Information. The Company shall send (via electronic transmission or otherwise) the following reports to the Purchaseruntil the Purchaser transfers, assigns or sells all of the Securities: (i) within ten (10) days after the filing with the SEC, a copy of its Annual Report on Form 10-K, its Quarterly Reports on Form 10-Q, its proxy statements and any Current Reportson Form 8-K; and (ii) within one (1) day after release, copies of all press releases issued by the Company or any of its Subsidiaries. 

 

(f) Reservation of Shares. The Company shall at all times have authorized and reserved for the purpose of issuance a sufficientnumber of shares of Common Stock to provide for the full conversion of the outstanding Note and issuance of the Conversion Shares in connection therewith to the extent required by the Note. 

 

(g) Listing. The Company shall promptly secure thelisting of the Conversion Shares upon each national securities exchange or automated quotation system, if any, upon which shares of Common Stock become listed or quoted (subject to official notice of issuance upon conversion of the Note) and shallmaintain, so long as any other shares of Common Stock shall be so listed or quoted, such listing of all Conversion Shares from time to time issuable upon the conversion of the Note. The Company shall comply in all material respects with thereporting, filing and other obligations under the bylaws or rules of any such national securities exchange or automated quotation system on which its shares of Common Stock are listed or quoted. The Company shall promptly provide to the holder ofNote copies of any notices it receives regarding the continued eligibility of the Common Stock for trading on any national securities exchange or automated quotation system on which securities of the same class or series issued by the Company arethen listed or quoted, if any. 

 

(h) CorporateExistence. So long as the Purchaser beneficially owns any Securities, the Company shall maintain its corporate existence, and in the event of a merger, consolidation or sale of all or substantially all of the Company’s assets, the Companyshall ensure that the surviving or successor entity in such transaction (i) assumes the Company’s obligations hereunder and under the other Transaction Documents and (ii) is a publicly traded corporation. 

 

(i) No Integrated Offerings. The Company shall not makeany offers or sales of any security (other than the Securities) under circumstances that would require registration of the Securities being offered or sold hereunder under the Securities Act or cause this offering of the Securities to be integratedwith any other offering of securities by the Company for purposes of any stockholder approval provision applicable to the Company or its securities. 

 

(j) Legal Compliance. The Company shall conduct its business and the business of its subsidiaries in compliance with all laws,ordinances or regulations of governmental entities applicable to such businesses, except where the failure to do so would not have a Material Adverse Effect. 

 

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(k)Redemptions and Dividends. So long as the Purchaser holds the Note, the Company shall not, without first obtaining the written approval of the Purchaser, repurchase, redeem or declare or pay any cash dividend or distribution on any shares ofcapital stock of the Company. 

 

(l)Information. So long as the Purchaser holds the Note, the Company shall furnish to the Purchaser: 

 

(i) concurrently with the filing with the SEC of its annual reports on Form 10-K, a certificate of the President, a VicePresident or a senior financial officer of the Company stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion withrespect thereto, neither the Company nor any of its Subsidiaries is or has during such period been in default in the performance or observance of any of the terms, covenants or conditions hereof, or, if the Company or any of its Subsidiaries shallbe or shall have been in default, specifying all such defaults, and the nature and period of existence thereof, and what action the Company or such Subsidiary has taken, is taking or proposes to take with respect thereto; and 

 

(ii) the information the Company must deliverto any holder or to any prospective transferee of Securities in order to permit the sale or other transfer of such Securities pursuant to Rule 144A of the SEC or any similar rule then in effect. 

 

The Company shall keep at its principal executive office a true copy of thisAgreement (as at the time in effect), and cause the same to be available for inspection at such office during normal business hours by any holder of Securities or any prospective transferee of Securities designated by a holder thereof. 

 

(m) Inspection of Properties and Books. So long as thePurchaser shall beneficially own any Securities, the Purchaser and its representatives and agents (collectively, the “**Inspectors**”) shall have the right, at the Purchaser’s expense, to visit and inspect any of the properties ofthe Company and of its Subsidiaries, to examine the books of account and records of the Company and of its Subsidiaries, to make or be provided with copies and extracts therefrom, to discuss the affairs, finances and accounts of the Company and ofits Subsidiaries with, and to be advised as to the same by, its and their officers, employees and independent public accountants (and by this provision the Company authorizes such accountants to discuss such affairs, finances and accounts, whetheror not a representative of the Company is present) all at such reasonable times and intervals and to such reasonable extent as the Purchaser may desire; *provided, however,* that each Inspector shall hold in confidence and shall not make anydisclosure (except to the Purchaser) of any such information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (i) the disclosure of such information is necessary toavoid or correct a misstatement or omission in any registration statement covering the Securities, (ii) the release of such information is ordered pursuant to a subpoena or other order from a court or government body of competent jurisdiction, or(iii) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Purchaser agrees that it shall, upon learning that disclosure of such information is sought in or by acourt or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the 

 

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Company, at its expense, toundertake appropriate action to prevent disclosure of, or to obtain a protective order for, the information deemed confidential. 

 

(n) Confidential Agreement. Except for any disclosure required by applicable law or rules of the SEC, the Company and the Purchasershall, and shall direct its respective representatives to, hold in confidence all information concerning this Agreement and the transactions contemplated hereby until the earlier of such time as (i) the Company has made a public announcementconcerning the Agreement and the transactions contemplated hereby or (ii) this Agreement is terminated. 

 

(o) Registration Rights. Promptly following the Closing, the Company and the Purchaser shall execute and deliver a registrationrights agreement in form customary for transactions of the type contemplated hereby, which registration rights agreement shall provide the Purchaser with unlimited piggyback registration rights and one demand registration right beginning one hundredand eighty days after the Closing. 

 

(p)Disclosure Schedule. Within five business days following the Closing, the Company shall deliver to the Purchaser the Disclosure Schedule, in form and substance satisfactory to the Purchaser in Purchaser’s sole discretion. 

 

5.     TRANSFER AGENT INSTRUCTIONS. 

 

(a) The Company shall instruct its transfer agent to issuecertificates (subject to the legend and other provisions hereof and in the Note), registered in the name of the Purchaser or its nominee, for the Conversion Shares in such amounts as specified from time to time by the Purchaser to the Company uponconversion of the Note. To the extent and during the periods provided in Sections 2(f) and 2(g) of this Agreement, all such certificates shall bear the restrictive legend specified in Section 2(g) of this Agreement. 

 

(b) The Company warrants that no instruction other than suchinstructions referred to in this Section 5 and stop transfer instructions to give effect to Section 2(f) hereof in the case of the transfer of the Conversion Shares prior to registration of the Conversion Shares under the Securities Act or withoutan exemption therefrom, shall be given by the Company to its transfer agent and that the Securities shall otherwise be freely transferable on the books and records of the Company as and to the extent provided in this Agreement. Nothing in thisSection shall affect in any way the Purchaser’s obligations and agreement set forth in Section 2(g) hereof to resell the Securities pursuant to an effective registration statement or under an exemption from the registration requirements ofapplicable securities law. 

 

(c) If the Purchaserprovides the Company and the transfer agent with an opinion of counsel, which opinion of counsel shall be in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that the Securities have been sold ortransferred pursuant to an exemption from registration, or the Purchaser provides the Company with an opinion of counsel, which opinion of counsel shall be in form, substance and scope customary for opinions of counsel in comparable transactions, tothe effect that such Securities may be sold under Rule 144(k), the Company shall permit the transfer and, in the case of the 

 

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Conversion Shares, promptlyinstruct its transfer agent to issue one or more certificates in such name and in such denominations as specified by the Purchaser. 

 

6.     CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL. 

 

The obligation of the Company hereunder to issue and sell the Note to the Purchaser and to otherwiseconsummate the transactions contemplated hereby is subject to the satisfaction, at or before the Closing, of each of the following conditions thereto, provided that these conditions are for the Company’s sole benefit and may be waived by theCompany at any time in its sole discretion. 

 

(a)The Purchaser shall have executed this Agreement and delivered the same to the Company. 

 

(b) The Purchaser shall have delivered the amount of the Purchase Price to the Company by wire transfer in accordance with the Company’s written wiring instructions. 

 

(c) The representations and warranties of the Purchaser shallbe true and correct as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which representations and warranties shall be true and correct as ofsuch date), and the Purchaser shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Purchaser at or prior tothe Closing Date. 

 

(d) No statute, rule,regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over thematters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. 

 

7.     CONDITIONS TO THE PURCHASER’S OBLIGATION TO PURCHASE. The obligation of the Purchaser hereunder to purchase theNote from the Company and to otherwise consummate the transactions contemplated hereby is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that such conditions are for the Purchaser’ssole benefit and may be waived by the Purchaser at any time in the Purchaser’s sole discretion: 

 

(a) The Company shall have executed this Agreement and delivered executed original copies of the same to the Purchaser. 

 

(b) The Company shall have delivered to the Purchaser a dulyexecuted Note registered in the Purchaser’s name. 

 

(c) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specificdate, which representations and warranties shall be true and correct as of such date) and the Company shall have performed, 

 

15 

 

satisfied and complied in allmaterial respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date. 

 

(d) No statute, rule, regulation, executive order, decree, ruling, injunction, action or proceeding shallhave been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which questions the validity of,challenges or prohibits the consummation of, any of the transactions contemplated by this Agreement. 

 

(e) There shall have been no material adverse changes and no material adverse developments in the business, properties, operations,prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, since the date hereof, and no information, of which the Purchaser is not currently aware, shall come to the attention of the Purchaserthat is materially adverse to the Company. 

 

(f)The Purchaser shall have received a copy of resolutions, duly adopted by the Board of Directors of the Company, which shall be in full force and effect at the time of the applicable Closing, authorizing the consummation by the Company of thetransactions contemplated hereby and by the other Transaction Documents, certified as such by the Secretary or Assistant Secretary of the Company. 

 

8.     GOVERNING LAW; MISCELLANEOUS. 

 

(a) Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State ofDelaware applicable to contracts made and to be performed in the State of Delaware. The Company and the Purchaser irrevocably consent to the jurisdiction of the United States federal courts and the state courts located in the State of Delaware inany suit or proceeding based on or arising under this Agreement and irrevocably agree that all claims in respect of such suit or proceeding may be determined in such courts. The Company irrevocably waives the defense of an inconvenient forum to themaintenance of such suit or proceeding. The Company further agrees that service of process upon the Company mailed by first class mail shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding.Nothing herein shall affect the right of the Purchaser to serve process in any other manner permitted by law. The Company agrees that a final non-appealable judgment in any such suit or proceeding shall be conclusive and may be enforced in otherjurisdictions by suit on such judgment or in any other lawful manner. 

 

(b) Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party anddelivered to the other party. This Agreement, once executed by a party, may be delivered to the other parties hereto by facsimile transmission of a copy of this Agreement bearing the signature of the party so delivering this Agreement. In the eventany signature is delivered by facsimile transmission, the party using such means of delivery shall cause the manually executed execution page(s) hereof to be physically delivered to the other party within five (5) days of the execution hereof,provided that the failure to so deliver 

 

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any manually executedexecution page shall not affect the validity or enforceability of this Agreement. 

 

(c) Construction. Whenever the context requires, the gender of any word used in this Warrant includes the masculine, feminine or neuter, and the number of any word includes the singular orplural. Unless the context otherwise requires, all references to articles and sections refer to articles and sections of this Agreement, and all references to schedules are to schedules attached hereto, each of which is made a part hereof for allpurposes. The descriptive headings of the several articles and sections of this Agreement are inserted for purposes of reference only, and shall not affect the meaning or construction of any of the provisions hereof. 

 

(d) Severability. If any provision of this Agreementshall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement or the validity or enforceability of this Agreement in any otherjurisdiction. 

 

(e) Entire Agreement;Amendments. This Agreement and the other Transaction Documents contain the entire understanding of the Purchaser, the Company, their affiliates and persons acting on their behalf with respect to the matters covered herein and therein and, exceptas specifically set forth herein or therein, neither the Company nor the Purchaser makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived other than by an instrument inwriting signed by the party to be charged with enforcement and no provision of this Agreement may be amended other than by an instrument in writing signed by the Company and the Purchaser. 

 

(f) Notices. Any notices required or permitted to be given under the terms of this Agreement shall besent by certified or registered mail (return receipt requested) or delivered personally, by responsible overnight carrier or by confirmed facsimile, and shall be effective five (5) days after being placed in the mail, if mailed, or upon receipt orrefusal of receipt, if delivered personally or by responsible overnight carrier or confirmed facsimile, in each case addressed to a party. The initial addresses for such communications shall be as follows, and each party shall provide notice to theother parties of any change in such party’s address: 

 
 (i) If to the Purchaser: 
 

P-Com, Inc. 

3175 South Winchester Blvd. 

Campbell, CA 95008

Telephone: (408) 866-3666 

Facsimile: (408) 874-4461 

Attention: Chief Executive Officer 

 

with a copy simultaneously transmitted by like means to 

(which transmittal shall not constitute notice hereunder): 

 

Sheppard Mullin Richter & Hampton LLP 

800 Anacapa Street 

 

17 

 

Santa Barbara, CA 93101 

Telephone: (805) 879-1812 

Facsimile: (805) 568-1955 

Attention: Theodore R. Maloney, Esq. 

 
 (ii) If to the Company: 
 

SPEEDCOM Wireless Corporation 

7020 Professional Parkway East 

Sarasota, FL 34240 

Telephone: (941) 907-2300 

Facsimile: (941) 355-0219

 

(g) Successors and Assigns. ThisAgreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. Except as provided herein, the Company shall not assign this Agreement or any rights or obligations hereunder. The Purchaser may assign ortransfer the Securities pursuant to the terms of the Note and this Agreement, as applicable, or assign the Purchaser’s rights hereunder or thereunder to any other person or entity, except for direct competitors of the Company or persons orentities that have publicly announced plans to compete directly with the Company. In addition, and notwithstanding anything to the contrary contained in this Agreement or the other Transaction Documents, the Securities may be pledged and all rightsof the Purchaser under this Agreement or any other Transaction Document may be assigned, without further consent of the Company, to a bona fide pledgee in connection with the Purchaser’s margin or brokerage account. 

 

(h) Third Party Beneficiaries. This Agreement isintended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person. 

 

(i) Survival. The representations and warranties of theCompany and the agreements and covenants set forth in Sections 3, 4, 5 and 8 hereof shall survive the Closing notwithstanding any due diligence investigation conducted by or on behalf of the Purchaser. Moreover, none of the representations andwarranties made by the Company herein shall act as a waiver of any rights or remedies the Purchaser may have under applicable U.S. federal or state securities laws. 

 

(j) Publicity. The Company and the Purchaser shall have the right to approve before issuance any pressreleases, SEC filings, or any other public statements with respect to the transactions contemplated hereby; *provided, however*, that the Company shall be entitled, without the prior approval of the Purchaser, to make any press release or SECfilings with respect to such transactions as is required by applicable law and regulations (although the Purchaser shall be consulted by the Company in connection with any such press release and filing prior to its release and shall be provided witha copy thereof). 

 

(k) Further Assurances.Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request

 

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in order to carry out theintent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby. 

 

(l) Joint Participation in Drafting. Each party to this Agreement has participated in the negotiation and drafting of thisAgreement and the other Transaction Documents. As such, the language used herein and therein shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied againstany party to this Agreement. 

 

(m) EquitableRelief. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Purchaser by vitiating the intent and purpose of the transactions contemplated hereby. Accordingly, the Company acknowledgesthat the remedy at law for a breach of its obligations hereunder (including, but not limited to, its obligations pursuant to Section 5 hereof) will be inadequate and agrees, in the event of a breach or threatened breach by the Company of theprovisions of this Agreement (including, but not limited to, its obligations pursuant to Section 5 hereof), that the Purchaser shall be entitled, in addition to all other available remedies, to an injunction restraining any breach and requiringimmediate issuance and transfer of the Securities, without the necessity of showing economic loss and without any bond or other security being required. 

 

(n) Indemnification by Company. From and after the Closing, the Company shall hold harmless and indemnify the Purchaser from andagainst, and shall compensate and reimburse the Purchaser for, any damages (including reasonable attorneys fees) which are directly or indirectly suffered or incurred by the Purchaser or to which the Purchaser may otherwise become subject(regardless of whether or not such damages relate to any third-party claim) and which arise from or as a result of, or are directly or indirectly connected with any inaccuracy in or breach of any of the Company’s representations, warranties orcovenants set forth herein. In the event of the assertion or commencement by any person of any claim or legal proceeding with respect to which the Purchaser may have indemnification rights pursuant to this Section 8(n), the Purchaser shall promptlynotify the Company thereof in writing, but the failure to so notify the Company will not limit the Purchaser’s rights to indemnification hereunder, except to the extent the Company demonstrates that the defense of such action is prejudiced bythe failure to so give such notice. 

 

(o)Additional Acknowledgement. The Purchaser acknowledges that it has independently evaluated the merits of the transactions contemplated by this Agreement and the other Transaction Documents and that it has independently determined to enterinto the transactions contemplated hereby and thereby. 

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

 

 

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IN WITNESSWHEREOF, the Purchaser and the Company have caused this Agreement to be duly executed as of the date first above written. 

 

**SPEEDCOM WIRELESS CORPORATION**

By:
    
Name:
  
Title:
  
**P-COM, INC.**

By:
    
Name:
  
Title: