This Financial Services Agreement involves
Title: Financial Advisor Agreement
Governing Law: California Date: 2/8/2005
Industry: Electronic Instr. and Controls Sector: Technology
January 22, 2005
935 Stewart Drive
Sunnyvale, CA 94085
Section 1. Appointment of Financial Advisor. This Agreement confirms our understanding that Proxim Corporation, a Delaware corporation (the “Company”), hereby appoints East Peak Advisors L.L.C. as its financial advisor (the “Advisor”) in connection with the proposed sale (the “Offering”) of up to $10.0 million of shares of the Company’s Class A Common Stock, par value $0.01 per share (the “Shares”), and any warrants issued in connection therewith (the “Warrants”) pursuant to an effective Registration Statement on Form S-3, File No. 333-119975 (as amended or supplemented, the “Registration Statement”), including any Prospectus Supplement(s) (and related final base Prospectus) (the Prospectus and any Prospectus Supplements collectively referred to as the “Prospectus Supplement”) relating to the Offering. On the basis of the representations and warranties contained herein, but subject to the terms and conditions set forth herein, the Advisor agrees to use its reasonable efforts to solicit and receive offers, but not act as an underwriter, to purchase the Shares.
The Advisor will render whatever services are mutually agreeable in connection with the Offering. In particular, the Advisor agrees to:
a. Familiarize itself to the extent it deems appropriate with respect to the business, operations, financial condition and prospects of the Company;
b. Identify a number of possible investors (“Purchasers”) which might have an interest in receiving the Prospectus Supplement and evaluating participation in the Offering;
c. Upon authorization from the Company, the Advisor will contact one or more of such possible investors;
d. Assist the Company and its Board of Directors in evaluating proposals received from any such possible investors;
e. Upon the Company’s request, the Advisor will participate in meetings of the Board of Directors of the Company (such participation to be in person or by telephone, as appropriate) at which the Offering is to be considered and, as appropriate, will report to the Board of Directors with respect thereto.
Notwithstanding anything to the contrary contained in this Agreement, the Advisor shall have no obligation to purchase any of the Shares, or any liability to the Company if any prospective purchaser fails to consummate a purchase of any of the Shares.
In connection with Advisor’s activities on the Company’s behalf, the Company agrees to reasonably cooperate with the Advisor and will furnish to, or cause to be furnished to, the Advisor all information and data concerning the Company (the “Information”) which the Company reasonably deems appropriate. The Company represents and warrants that all Information made available to the Advisor by the Company with respect to the Offering or otherwise included or incorporated by reference in the Prospectus Supplement will not contain any untrue statements of material fact or omit to state a material fact necessary in order to make the statements therein not misleading in light of the circumstances under which the statements are made and that any projections, forecasts or other Information provided by the Company to the Advisor will have been prepared in good faith and will be based upon reasonable assumptions. Prior to any Offering, the Company agrees to promptly notify the Advisor if the Company believes that any Information, which was previously provided, has become materially misleading. The Company acknowledges and agrees that, in rendering its services hereunder, the Advisor will be using and relying on the Information (and information available from public sources and other sources deemed reliable by the Advisor) without independent verification thereof or independent appraisal or evaluation of the Company, or any party to the transaction. The Advisor does not assume responsibility for the accuracy or completeness of the Information, the Prospectus Supplement (except with respect to the description of any plan of distribution), or any other information regarding the Company.
Section 2. Fees and Expenses. (a) Upon the consummation of the Offering, the Company will pay the Advisor a cash fee (the “Fee”) equal to 4% of the cash consideration received by the Company for the sale of the Shares, less any fee paid under Section 2(b) hereunder. The fees payable hereunder will be due upon consummation of an Offering involving any investor in the approved investor list appended as Schedule A hereto (as such list may be amended from time to time by mutual agreement of the Company and the Advisor, the “Approved Investor List”), which Approved Investor List may be amended from time to time by agreement of the Company and the Advisor.
(b) In the event that the Offering is not consummated following the Company’s execution of a letter of intent indicating the potential terms for an investment in the Company by an investor on the Approved Investor List due to the Company’s refusal to participate in the transaction or transactions on the terms set forth in such letter of intent, (as such terms may be amended from time to time), the Company shall pay an advisory fee of $50,000 at or prior to February 28, 2005. Whether or not the Offering is consummated the Company will also reimburse
the Advisor for any out-of-pocket expenses reasonably incurred in connection with the Advisor’s obligations hereunder, including without limitation, (1) travel expenses and (2) reasonable fees and expenses of counsel engaged with the Company’s consent, up to a maximum of $50,000.
(c) The right of the Advisor to receive the fees and reimbursements set forth in this Section 2 shall survive the termination of this Agreement in accordance with Section 11 hereof.
Section 3. Information Regarding the Company. The Company will not prepare any offering materials in connection with the Offering other than the Prospectus Supplement, nor will it provide investors with any materials not previously filed with Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or the Securities Act of 1933 (the “Securities Act”).
Section 4. Representations and Warranties . The Company represents and warrants to the Advisor that:
(a) This Agreement has been duly authorized, executed and delivered by the Company and represents the legal, valid and binding obligation of the Company, enforceable in accordance with its terms;
(b) The representations and warranties of the Company contained in each purchase agreement executed by a Purchaser in connection with the Offering will be true and correct as of any closing date for the Offering (a “Closing Date”);
(c) The Company’s public reports filed with the Commission, and all subsequent reports (collectively, the “Exchange Act Reports”) that have been filed by the Company with the Commission or sent to stockholders, pursuant to Section 13 of the Exchange Act, did not when filed and, taken as a whole and as amended to the date hereof do not as of the date hereof contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. Such documents, when they were filed with the Commission, conformed to the requirements of the Exchange Act, the Securities Act and the rules and regulations of the Commission thereunder.
(d) The Registration Statement has been declared effective by the Commission under the Securities Act and no stop order has been issued suspending the effectiveness of the Registration Statement and no proceedings for such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission. The Registration Statement, at the time it became effective, and at all subsequent times, and the Prospectus Supplement in the form delivered to a Purchaser complied in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
Section 5. Agreements. The Company agrees with the Advisor that:
(a) The Company shall extend to all prospective Purchasers the opportunity, prior to the Closing Date, to ask questions of, and receive answers from, the Company concerning the Shares and the terms and conditions of the offering thereof and to obtain any information that such prospective purchasers may consider necessary in making an informed investment decision, to the extent the Company possesses the same or can acquire it without unreasonable effort or expense and in compliance with Regulation FD promulgated under the Exchange Act; and
(b) If any event occurs or condition exists as a result of which the information contained in the Company’s Exchange Act Reports, the Registration Statement, the Prospectus or the Prospectus Supplement, would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances when the filings were made not misleading, or if, in the opinion of the Advisor or the Company, it is necessary at any time prior to the Closing to file a subsequent report to comply with applicable law, the Company will notify the Advisor of any such event, condition or opinion of the Company and shall prepare an amendment or report that will correct such statement or omission or effect such compliance and will supply such amendment or report to the Advisor.
Section 6. Closing Documents. On each Closing Date, the Company shall deliver to the Advisor:
(a) a copy of each officer’s certificate delivered by the Company to a Purchaser pursuant to the applicable purchase agreement;
(b) an opinion of counsel to the Company dated the Closing Date to the effect that this Agreement has been duly authorized, executed and delivered by the Company and a letter from such counsel dated the Closing Date to the effect that the Advisor may rely on each opinion of such counsel delivered to any Purchaser in connection with the closing contemplated by each purchase agreement to the same extent as if such opinion or opinions had been addressed to the Advisor;
(c) a copy of any “comfort letter” delivered to Purchasers of the Shares dated the Closing Date and a letter from Company’s independent auditors dated the Closing Date to the effect that the Advisor may rely on such “comfort letter” delivered to any Purchaser in connection with the closing contemplated by each purchase agreement to the same extent as if such opinion or opinions had been addressed to the Advisor; and
(d) copies of any other d