EXHIBIT 10.115
CONSULTING AGREEMENT
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This CONSULTING AGREEMENT (the "Agreement"), effective as of February
3, 2003, is entered into by and between P-COM, INC. (herein referred to as the
"Company") and LIVIAKIS FINANCIAL COMMUNICATIONS, INC., a California corporation
(herein referred to as the "Consultant").
RECITALS
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WHEREAS the Company is a public company whose common stock is presently
traded on the Nasdaq SmallCap Market;
WHEREAS the Consultant has developed relationships with brokers,
institutional investors, investment bankers, public relations firms, investor
relations firms, various accredited investors and financial advertising and
reporting networks which may assist the Company in enhancing the market
recognition of the Company, its products and prospects, and the underlying
fundamental value of the Company's securities;
WHEREAS the Company desires to engage the services of the Consultant to
represent the Company in investors' communications and public relations with
existing shareholders, brokers, dealers and other investment professionals as to
the Company's current and proposed activities, and to consult with management
concerning such the Company activities; and
WHEREAS the Consultant agrees to be retained for the foregoing
purposes, subject to the terms and conditions provided in this Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereto covenant and
agree as follows:
1) TERM OF CONSULTANCY. The Company hereby agrees to retain the Consultant to
act in a consulting capacity to the Company, and the Consultant hereby
agrees to provide services to the Company commencing February 3, 2003, and
ending on February 2, 2004.
2) DUTIES OF THE CONSULTANT. The Consultant agrees that it will generally
provide the following specified consulting services:
a) Assist the Company in raising capital through introductions (it is
understood LFC is not a licensed broker-dealer or "investment banking"
firm);
b) Consult and assist the Company in developing and implementing
appropriate plans and means for presenting the Company and its
business plans, strategy and personnel to the financial community,
establishing an image for the Company in the financial community, and
creating the foundation for subsequent financial public relations
efforts;
c) Introduce the Company to the financial community;
d) With the cooperation of the Company, maintain an awareness during the
term of this Agreement of the Company's plans, strategy and personnel,
as they may evolve during such period, and consult and assist the
Company in communicating appropriate information regarding such plans,
strategy and personnel to the financial community;
e) Assist and consult the Company with respect to its (i) relations with
stockholders, (ii) relations with brokers, dealers, analysts and other
investment professionals, and (iii) financial public relations
generally;
f) Perform the functions generally assigned to stockholder relations and
public relations departments in major corporations, including
responding to telephone and written inquiries (which may be referred
to the Consultant by the Company); preparing press releases for the
Company with the Company's involvement and approval of press releases,
reports and other communications with or to shareholders, the
investment community and the general public; consulting with respect
to the timing, form, distribution and other matters related to such
releases, reports and communications; and, at the Company's request
and subject to the Company's securing its own rights to the use of its
names, marks, and logos, consulting with respect to corporate symbols,
logos, names, the presentation of such symbols, logos and names, and
other matters relating to corporate image;
g) Upon the Company's direction and approval, disseminate information
regarding the Company to shareholders, brokers, dealers, other
investment community professionals and the general investing public;
h) Upon the Company's approval, conduct meetings, in person or by
telephone, with brokers, dealers, analysts and other investment
professionals to communicate with them regarding the Company's plans,
goals and activities, and assist the Company in preparing for press
conferences and other forums involving the media, investment
professionals and the general investment public;
i) At the Company's request, review business plans, strategies, mission
statements budgets, proposed transactions and other plans for the
purpose of advising the Company of the public relations implications
thereof; and
j) Otherwise perform as the Company's consultant for public relations and
relations with financial professionals.
3) ALLOCATION OF TIME AND ENERGIES. The Consultant hereby promises to perform
and discharge faithfully the responsibilities which may be assigned to the
Consultant from time to time by the officers and duly authorized
representatives of the Company in connection with the conduct of its
financial and public relations and communications activities, so long as
such activities are in compliance with applicable securities laws and
regulations. The Consultant and staff shall diligently and thoroughly
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provide the consulting services required hereunder. Although no specific
hours-per-day requirement will be required, the Consultant and the Company
agree that the Consultant will perform the duties set forth herein above in
a diligent and professional manner. The parties acknowledge and agree that
a disproportionately large amount of the effort to be expended and the
costs to be incurred by the Consultant and the benefits to be received by
the Company are expected to occur within or shortly after the first two
months of the effectiveness of this Agreement. It is explicitly understood
that the Consultant's performance of its duties hereunder will in no way be
measured by the price of the Company's common stock, nor the trading volume
of the Company's common stock. It is also understood that the Company is
entering into this Agreement with Liviakis Financial Communications, Inc.
("LFC"), a corporation and not any individual member of LFC, and, as such,
the Consultant will not be deemed to have breached this Agreement if any
member, officer or director of LFC leaves the firm or dies or becomes
physically unable to perform any meaningful activities during the term of
the Agreement, provided the Consultant otherwise performs its obligations
under this Agreement.
4) REMUNERATION. As full and complete compensation for services described in
this Agreement, the Company shall compensate the Consultant as follows:
a) For undertaking this engagement and for other good and valuable
consideration, the Company agrees to issue and deliver to the
Consultant a "Commencement Bonus" payable in the form of 1,500,000
shares of the Company's common stock, par value $0.0001 per share
("Common Stock"). This Commencement Bonus shall be issued to the
Consultant immediately following execution of this Agreement and
shall, when issued and delivered to the Consultant, be fully paid and
non-assessable. The Company understands and agrees that the Consultant
has foregone significant opportunities to accept this engagement and
that the Company derives substantial benefit from the execution of
this Agreement and the ability to announce its relationship with the
Consultant. The shares of Common Stock issued as a Commencement Bonus,
therefore, constitute payment for the Consultant's agreement to
consult to the Company and are a nonrefundable, non-apportionable, and
non-ratable retainer; such shares of common stock are not a prepayment
for future services. If the Company decides to terminate this
Agreement prior to February 2, 2004, for any reason whatsoever, it is
agreed and understood that the Consultant will not be requested or
demanded by the Company to return any of the shares of Common Stock
paid to it as Commencement Bonus hereunder. Further, if and in the
event the Company is acquired in whole or in part, during the term of
this Agreement, it is agreed and understood the Consultant will not be
requested or demanded by the Company to return any of the shares of
Common stock paid to it hereunder. It is further agreed that if at any
time during the term of this Agreement, the Company or substantially
all of the Company's assets are merged with or acquired by another
entity, or some other change occurs in the legal entity that
constitutes the Company, the Consultant shall retain and will not be
requested by the Company to return any of the shares.
b) The Company agrees to issue and deliver to the Consultant 1,100,000
shares of the Common Stock on June 3, 2003, so long as this contract
has not been terminated prior to such date at the Company's sole
discretion. Thereafter, if the contract has not been cancelled by June
3, 2003, the Consultant shall be paid an additional 50,000 shares of
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the Common Stock at the end of each successive month for eight
additional months of service for an additional total of 400,000 shares
of the Common Stock.
c) With each transfer by the Consultant of shares of Common Stock to be
issued pursuant to this Agreement (collectively, the "Shares"), the
Company shall cause to be issued a certificate representing the Common
Stock and a written opinion of counsel for the Company stating that
said Shares are validly issued, fully paid and non-assessable and that
the issuance of them to the Consultant has been duly authorized by the
Company. The Company warrants that all Shares issued to the Consultant
pursuant to this Agreement shall have been validly issued, fully paid
and non-assessable and that the issuance and any transfer of them to
the Consultant shall have been duly authorized by the Company's board
of directors.
d) The Consultant acknowledges that the shares of Common Stock to be
issued pursuant to this Agreement (collectively, the "Shares") have
not been registered under the Securities Act of 1933, as amended (the
"Act") or any applicable state securities laws and accordingly are
"restricted securities" within the meaning of Rule 144 promulgated
under the Act, and it understands and agrees that the Shares must be
held indefinitely unless a subsequent disposition thereof is
registered under the Act or is exempt from such registration, the
certificates representing the Shares will bear a legend to that effect
and the Company will make a notation on its transfer books to such
effect. As such, the Shares may not be resold or transferred unless
the Company has received an opinion of counsel reasonably satisfactory
to the Company that such resale or transfer is exempt from the
registration requirements of that Act. Upon such time as the Shares
are freely transferable under Rule 144, in the event the Consultant
shall desire to transfer any Shares in accordance with Rule 144, the
Company shall provide all documents and approvals required within five
(5) days of receipt of the Consultant's request for transfer and
submission of broker representation and similar Rule 144 documents for
transfer of such Shares. Any delay in the provision of written
approval requested by the Consultant in connection with a permitted
Rule 144 transfer of Shares shall result in a payment to the
Consultant, within thirty (30) days, of a number of shares of Common
Stock equal to one percent of the Shares to be transferred for each
day that the Company withholds approval of the Consultant's request
for removal of legend and transfer of Shares, up to a maximum
aggregate of 150,000 shares of common stock to be so issued.
e) In connection with the acquisition of Shares hereunder, the Consultant
represents and warrants to the Company as follows:
i) The Consultant acknowledges that the Consultant has been afforded
the opportunity to ask questions of and receive answers from duly
authorized officers or other representatives of the Company
concerning an investment in the Shares, and any additional
information which the Consultant has requested.
ii) The Consultant's investment in restricted securities is
reasonable in relation to the Consultant's tangible net worth,
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which is in excess of ten (10) times the Consultant's cost basis
in the Shares. The Consultant has had experience in investments
in restricted and publicly traded securities, and the Consultant
has had experience in investments in speculative securities and
other investments which involve the risk of loss of investment.
The Consultant acknowledges that an investment in the Shares is
speculative and involves the risk of loss. The Consultant has the
requisite knowledge to assess the relative merits and risks of
this investment without the necessity of relying upon other
advisors, and the Consultant can afford the risk of loss of its
entire investment in the Shares. The Consultant is (i) an
accredited investor, as that term is defined in Regulation D
promulgated under the Act, and (ii) a purchaser described in
Section 25102 (f) (2) of the California Corporate Securities Law
of 1968, as amended.
iii) The Consultant is acquiring the Shares for its own account for
the purpose of investment and not with a view to or for sale in
connection with any distribution thereof.
5) NON-ASSIGNABILITY OF SERVICES. The Consultant's services under this
contract are offered to the Company only and may not be assigned by the
Company to any entity with which the Company merges or which acquires the
Company or substantially all of its assets. In the event of such merger or
acquisition, all compensation to the Consultant herein under the schedules
set forth herein shall remain due and payable, and any compensation
received by the Consultant may be retained in the entirety by the
Consultant, all without any reduction or pro-rating and shall be considered
and remain fully paid and non-assessable. Notwithstanding the
non-assignability of the Consultant's services, the Company shall assure
that in the event of any merger, acquisition, or similar change of form of
entity, that its successor entity shall agree to complete all obligations
to the Consultant, including the provision and transfer of all compensation
herein, and the preservation of the value thereof consistent with the
rights granted to the Consultant by the Company herein, and to
shareholders. The parties agree that the Consultant's services are personal
in nature and may not be delegated by the Consultant to any other person or
entity, whether by operation of law or otherwise.
6) EXPENSES. The Consultant agrees to pay for all its expenses (phone,
mailing, labor, etc.), other than extraordinary items (travel required
by/or specifically requested by the Company, luncheons or dinners to large
groups of investment professionals, mass faxing to a sizable percentage of
the Company's constituents, investor conference calls, print advertisements
in publications, etc.) approved by the Company prior to its incurring an
obligation for reimbursement.
7) INDEMNIFICATION. The Company warrants and represents that all oral
communications, written documents or materials furnished to the Consultant
by the Company with respect to financial affairs, operations, profitability
and strategic planning of the Company are accurate and the Consultant may
rely upon the accuracy thereof without independent investigation. The
Company will protect, indemnify and hold harmless the Consultant against
any claims or litigation including any damages, liability, cost and
reasonable attorney's fees as incurred with respect thereto resulting from
the Consultant's communication or dissemination of any said information,
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documents or materials excluding any such claims or litigation resulting
from the Consultant's communication or dissemination of information not
provided or authorized by the Company.
8) REPRESENTATIONS. The Consultant represents, warrants and covenants to the
Company that the Consultant and each of its officers, agents or others
employed or retained by the Consultant ("Associated Persons") will at all
times during the term of this Agreement satisfy the following warranties
and representations. The Consultant agrees that it will be responsible for
the accuracy and truthfulness of the warranties and representations of the
Associated Persons.
a) The Consultant represents that it is not required to maintain any
licenses and registrations under federal or any state regulations
necessary to perform the services set forth herein. The Consultant
acknowledges that, to the best of its knowledge, the performance of
the services set forth under this Agreement will not violate any rule
or provision of any regulatory agency having jurisdiction over the
Consultant. The Consultant acknowledges that, to the best of its
knowledge, the Consultant and its officers and directors are not the
subject of any investigation, claim, decree or judgment involving any
violation of the SEC or securities laws. The Consultant further
acknowledges that it is not a securities broker-dealer or a registered
investment advisor.
b) The Consultant and its Associated Persons shall at all times comply
with any and all applicable federal, state, local or foreign laws,
including securities laws, rules and regulations of any court,
government or unit or agency thereof in its performance hereunder. The
Consultant and each Associated Person will disclose in all reports,
communications, etc. that it is a consultant of the Company and that
it is being compensated by the Company or, if the Consultant or an
Associated Person hires another firm or person to perform the
Services, then the disclosure shall indicate that the other party is
being compensated by the Consultant and/or such Associated Person.
Specifically, the Consultant and its Associated Persons will each
during the term of this Agreement at all times comply with the
requirements of Section 17(b) of the Act and will not solicit the
purchase or sale of any securities of the Company without disclosing
any compensation arrangement.
c) The Consultant and its Associated Person shall have all appropriate
licenses in order to act in its capacity pursuant to the terms of this
Agreement and shall maintain such licenses in good standing throughout
the term of this Agreement.
d) The Consultant and its Associated Persons acknowledge that the
services to be provided pursuant to this Agreement and the receipt,
retention and disposition of the compensation to be paid to the
Consultant and/or its Associated Persons under this Agreement are
subject to applicable securities laws, including the Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
Consultant shall at all times comply with all applicable securities
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laws in connection with performing its duties under this Agreement and
in connection with the receipt, retention and disposition of the
compensation to be paid to the Consultant under this Agreement.
e) The Consultant and its Associated Persons acknowledge that the
services to be provided pursuant to this Agreement and the receipt,
retention and disposition of the compensation to be paid to the
Consultant and/or its Associated Persons under this Agreement are
subject to National Investor Relations Institute Code of Ethics (the
"NIRI Code"), which require an investor relations consultant (i) to
avoid even the appearance that the consultant's services are
promotional, and (ii) to conform with the Company's ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
policies. The Consultant shall at all times comply with the NIRI Code
in connection with performing its duties under this Agreement and in
connection with the receipt, retention and disposition of the
compensation to be paid to the Consultant under this Agreement.
f) The Consultant is free to enter into this Agreement and the services
to be provided pursuant to this Agreement are not in conflict with any
other contractual or other obligation to which the Consultant or its
Associated Persons are bound.
g) The Consultant and its Associated Persons shall not provide any
material non-public information regarding the Company to any person
until such person has executed and delivered to the Company (in care
of the Consultant) a confidentiality and no-trade agreement in a form
furnished by the Company to the Consultant.
h) The Consultant and its Associated Persons each acknowledge that
certain information that the Company or its representatives will
provide to the Consultant or its Associated Persons in connection with
the performance of the services under this Agreement will be material
non-public information about the Company (the "Material Information").
The Consultant and its Associated Persons acknowledge that they each
are aware of the restrictions of applicable securities laws, including
Regulation FD and Sections 9 and 10 of the Exchange Act and Rule 10b-5
under the Exchange Act, relating to the trading in securities of an
issuer, including while in possession of material non-public
information regarding that issuer. The Consultant and its Associated
Persons agree that they will each comply with all securities laws
concerning Material Information and further agree that each, until all
of the Material Information becomes publicly available (other than as
a result of a disclosure by the Consultant or its Associated Persons),
shall not directly or indirectly (nor shall it permit any of its
officers, directors, affiliates or agents to): (i) disclose the
Material Information, except pursuant to the delivery of disclosure
documents to potential investors at the request of the Company; or
(ii) for its own account or for the account of others, purchase, offer
to sell, contract to sell or otherwise sell, sell short, sell long,
dispose of, loan, pledge or grant any rights with respect to or offer
to do any of the foregoing or otherwise trade in any shares of common
stock of the Company, any options or warrants to purchase any shares
of common stock of the Company or any securities convertible into or
exchangeable for any shares of common stock of the Company. Further,
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the Consultant and its Associated Persons agree that the Company is
authorized to place "stop orders" on its books to prevent any transfer
of common stock of the Company in violation of the foregoing.
i) The Consultant is under no contractual restriction or other
restrictions or obligations that are inconsistent with this Agreement,
the performance of its duties and the covenants hereunder; (ii) its
management is under no physical or mental disability that would
interfere with its keeping and performing all of the agreements,
covenants and conditions to be kept or performed hereunder; (iii) it
is familiar with all federal and state securities laws applicable to
the performance of its services as contemplated in this Agreement,
including Sections 17(b) of the Act, Sections 9 and 10(b) of the
Exchange Act and Regulation FD; (iv) it will comply with all
applicable federal and state securities laws in the performance of the
services under this Agreement; and (v) it will cause any person to
whom any of the Shares or other compensation are transferred to agree
and undertake for the benefit of the Company to comply with all
applicable federal and state securities laws in connection with their
ownership or disposition of the Shares (including compliance with
Section 17(b) of the Act to the extent applicable).
j) The Consultant agrees not to, directly or indirectly, enter into any
short sale or take any short position in the securities of the Company
or to enter into any other transaction relating to securities of the
Company inconsistent with the plan of distribution set forth in any
registration statement relating to securities received by the
Consultant as compensation hereunder.
The Company acknowledges that, to the best of its knowledge, that it has
not violated any rule or provision of any regulatory agency having
jurisdiction over the Company. The Company acknowledges that, to the best
of its knowledge, the Company is not the subject of any investigation,
claim, decree or judgment involving any violation of the SEC or securities
laws.
9) TERMINATION. The Company may terminate this Agreement at any time on or
before June 3, 2003 by sending notice thereof to the Consultant on or
before such date. If the Company terminates this Agreement, the Company
shall have no further liability or obligation to the Consultant under this
Agreement, except for the registration obligation contained in Paragraph
4(a), which shall survive such termination.
10) LEGAL REPRESENTATION; INTERPRETATION. The Company acknowledges that it has
been represented by independent legal counsel in the preparation of this
Agreement. The Consultant represents that it has consulted with independent
legal counsel and/or tax, financial and business advisors, to the extent
the Consultant deemed necessary. Each party and its counsel cooperated in
the drafting and preparation of this Agreement and the documents referred
to herein, and any and all drafts relating thereto shall be deemed the work
product of the parties and may not be construed against any party by reason
of its preparation. Accordingly, any rule of law, including but not limited
to any decision that would require interpretation of any ambiguities in
this Agreement against the party that drafted it, is of no application and
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is hereby expressly waived. The provisions of this Agreement shall be
construed as a whole and in accordance with its fair meaning to affect the
intentions of the parties and this Agreement.
11) STATUS AS INDEPENDENT CONTRACTOR. The Consultant's engagement pursuant to
this Agreement shall be as independent contractor, and not as an employee,
officer or other agent of the Company. Neither party to this Agreement
shall represent or hold itself out to be the employer or employee of the
other. The Consultant further acknowledges the consideration provided
hereinabove is a gross amount of consideration and that the Company will
not withhold from such consideration any amounts as to income taxes, social
security payments or any other payroll taxes. All such income taxes and
other such payment shall be made or provided for by the Consultant and the
Company shall have no responsibility or duties regarding such matters.
Neither the Company nor the Consultant possesses the authority to bind each
other in any agreements without the express written consent of the entity
to be bound.
12) ATTORNEY'S FEES. If any legal action or any arbitration or other proceeding
is brought for the enforcement or interpretation of this Agreement, or
because of an alleged dispute, breach, default or misrepresentation in
connection with or related to this Agreement, the successful or prevailing
party shall be entitled to recover reasonable attorneys' fees and other
costs in connection with that action or proceeding, in addition to any
other relief to which it or they may be entitled. In the event there is a
delay in the provision by the Company of approval documents required under
Rule 144 and after the Consultant's demand for such documenting approval is
made upon the Company in connection with a transfer permitted under Rule
144, the Company shall be liable for all attorney's fees incurred by the
Consultant in obtaining compliance therewith. Such fees shall be due and
payable without regard to whether an arbitration or other legal action is
instituted by the Consultant.
13) WAIVER. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver
of any subsequent breach by such other party.
14) CHOICE OF LAW, JURISDICTION AND VENUE. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of
California. The parties agree that Santa ▇▇▇▇▇ County, California will be
the venue of any dispute and will have jurisdiction over all parties.
15) ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, or the alleged breach thereof, or relating to the Consultant's
activities or remuneration under this Agreement, shall be settled by
binding arbitration in California, in accordance with the applicable rules
of JAMS Endispute, and judgment on the award rendered by the arbitrator(s)
shall be binding on the parties and may be entered in any court having
jurisdiction as provided by Paragraph 14 herein. The provisions of Title 9
of Part 3 of the California Code of Civil Procedure, including section
1283.05, and successor statutes, permitting expanded discovery proceedings
shall be applicable to all disputes that are arbitrated under this
paragraph.
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16) COMPLETE AGREEMENT. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its terms
may not be changed orally but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification,
extension or discharge is sought.
17) SEVERABILITY. If any provision of this Agreement shall be held or deemed to
be, or shall in fact be, inoperative or unenforceable as applied in any
particular case because it conflicts with any other provision or provisions
hereof, or any other provision or provisions hereof, or any constitution or
statute or rule of public policy, or for any other reason, such
circumstances shall not have the effect of rendering the provision in
question inoperative or unenforceable to any extent whatsoever. The
invalidity of any one or more phrases, sentences, clauses, sections or
subsections of this Agreement shall not affect the remaining portions of
this Agreement.
AGREED TO:
"The Company" P-COM, INC.
Date: Feb 3, 2003 By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman & CEO
"The Consultant" LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
Date: Feb 3, 2003 By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇, President
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