PURCHASE AND RELEASE AGREEMENT
THIS PURCHASE AND RELEASE
AGREEMENT (“ Agreement ”) is made as of
November 2, 2007 by and among Proxim Wireless Corporation, a
Delaware corporation (the “ Company ”),
the persons set forth on the signature pages affixed hereto
(each an “ Investor ” and collectively the
“ Investors ”), and the affiliates of the
Investors set forth on the signature pages hereto (each, a
“ Joining Party ” and collectively the
“ Joining Parties ”).
RECITALS
A. The
Company wishes to purchase from the Investors, and the
Investors wish to sell to the Company, upon the terms and
conditions stated in this Agreement, an aggregate of 555,000
shares (the “ Stock ”) of the
Company’s common stock, par value $0.01 per share (the
“ Common Stock ”), at purchase price of
$1.70 per share, which Common Stock was sold by the Company to
the Investors pursuant to a Purchase Agreement, dated as of
July 19, 2007 (the “ Original Purchase Agreement
”), among the Company and the other parties to the
Original Purchase Agreement (including, without limitation,
the Investors). Capitalized terms used in this
Agreement without definition have the meanings given to those
terms in the Original Purchase Agreement.
B. As
a condition precedent to the Company’s purchase of the
Stock from the Investors, the Investors will return to the
Company for cancellation warrants to purchase an aggregate of
300,000 shares of Common Stock (the “ Warrants
”).
In consideration of the
mutual promises made herein and for other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
1.
SALE OF STOCK . Each Investor hereby sells
to Company, and Company hereby purchases from each
Investor, the number of shares of Common Stock set forth
opposite the Investor’s name on the signature pages
attached hereto for the purchase price set forth opposite the
Investor’s name on the signature pages attached
hereto. The aggregate purchase price for all the
Stock is Nine Hundred Forty-Three Thousand Five Hundred and
00/100 Dollars ($943,500.00) (the “ Purchase
Price ”).
2.
DELIVERABLES .
(a) No
later than November 16, 2007, the Investors shall deliver to
Foley Hoag LLP, in trust, (i) the original certificates,
registered in the names of the Investors, representing the
Stock, (ii) a Medallion Guaranteed stock power for each
certificate in the form and completed as reasonably requested
by the Company, and (ii) the original warrant certificates set
forth opposite the Investors’ names on the signature
pages attached hereto, with instructions that such materials
are to be held for release to the Company only upon payment in
full of the Purchase Price to the Investors by the
Company.
(b) Upon
such receipt by Foley Hoag LLP of all of the materials
described in and in accordance with Section 2(a) above, the
Company shall promptly, but no more than three Business Days
thereafter, cause a wire transfer in same day funds to be sent
to the account of the Investors as instructed in writing by
the Investors, in an amount representing such Investor’s
pro rata portion of the Purchase Price as set forth on the
signature pages to this Agreement. Upon initiation
of the wire transfer(s), the Company will so notify Foley Hoag
LLP in writing, and Foley Hoag LLP shall then be authorized to
release, and shall then release, to the Company the materials
delivered to Foley Hoag LLP by the Investors pursuant to
Section 2(a) above.
(c) If
the Investors fail to deliver all the materials described in
and in accordance with Section 2(a) above on or before
November 16, 2007, then each of the Investors hereby
specifically agrees and acknowledges that the Company is
authorized (but not required) to authorize and direct its
transfer agent to cancel any and all certificates representing
any of the Stock, in which case the Stock shall no longer be
outstanding and the Investors shall no longer be or have any
rights as stockholders of the Company. If the
Company does so direct its transfer agent, the Company shall,
within three Business Days after receiving confirmation that
the Stock has been cancelled and is no longer outstanding,
cause a wire transfer in same day funds to be sent to the
account of the Investors as instructed in writing by the
Investors, in an amount representing such Investor’s pro
rata portion of the Purchase Price as set forth on the
signature pages to this Agreement. Upon initiation
of those wire transfer(s), the Warrants shall be immediately
cancelled and declared void without the need to surrender the
original Warrants.
3.
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF
INVESTORS . The Investors jointly and
severally represent, warrant, and covenant to the Company as
follows:
(a) Each
Investor is the sole owner, both of record and beneficially,
of the number of shares of Common Stock set forth opposite
the Investor’s name on the signature pages attached
hereto, and such Common Stock is the only Common Stock owned,
directly or indirectly, beneficially or of record, by such
Investor or which such Investor has the right to acquire
directly or indirectly through the exercise of warrants,
options, or any other arrangement (other than the Warrants
and other than the shares of Common Stock described on
Schedule A to this Agreement (the “ Retained
Shares ”)). The Stock being purchased by
the Company pursuant to this Agreement are the shares of
Common Stock that were issued to the Investors pursuant to
the Original Purchase Agreement. The Stock is free
and clear of all voting agreements or restrictions, rights of
first refusal, co-sale rights, security interests, liens,
pledges, claims, options, charges, assessments of any kind
whatsoever, other encumbrances, or any other interests of any
third party.
(b) Each
Investor has full power, right, and authority to enter into
and perform this Agreement and to sell the Stock to the
Company without restriction. Each Investor has
taken all requisite action on the part of the Investor, its
officers, directors, managers, members, and stockholders
necessary for (i) the authorization, execution, and delivery
of this Agreement and (ii) the performance of all obligations
of each Investor hereunder. This Agreement
constitutes the legal, valid and binding obligation of each
Investor, enforceable against each Investor in accordance
with its terms. The Company will, pursuant to this
Agreement, acquire good and valid title to the Stock
free and clear of any and all interests of any third
party.
(c) The
execution and delivery of this Agreement by each Investor
does not and will not conflict with or result in any
violation of or default under (with or without notice or
lapse of time or both) any contract or other agreement or any
judgment, order, law, rule or regulation applicable to any
Investor or any of their properties or assets. No
consent, approval, or authorization of, or registration,
declaration or filing with, any person or entity is required
in connection with the execution, delivery, or performance of
this Agreement by each Investor.
(d) Each
Investor has such knowledge and experience in financial and
business matters in general and investments in particular so
that each Investor is able to evaluate the merits and risks
of entering into this Agreement. Each Investor has
had a sufficient opportunity to consider the transactions
contemplated by this Agreement and to request and receive all
information related to the Company desired by each Investor
and to ask questions of and receive answers from the Company
regarding the Company and its business. Each
Investor has received such information as it considers
necessary or appropriate for deciding whether to enter into
this Agreement. Each Investor has made its own
investigation concerning the advisability of entering into
this Agreement. Each Investor has consulted with
and obtained advice from its individual legal, tax,
financial, and other advisors to the extent each Investor has
desired. Each Investor is an “accredited
investor” as defined in Rule 501(a) of Regulation D, as
amended, under the Securities Act of 1933. NO
INVESTOR IS RELYING ON ANY REPRESENTATIONS, WARRANTIES,
AGREEMENTS, ADVICE, OR OTHER STATEMENTS, WRITTEN OR ORAL,
FROM OR MADE BY OR ON BEHALF OF THE COMPANY OR ANY OF ITS
DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS.
(e) No
person or entity will have, as a result of the transactions
contemplated by this Agreement, any right, interest, or claim
against or upon the Company or any affiliate of the Company
for any commission, fee or other compensation pursuant to any
agreement, arrangement or understanding entered into by or on
behalf of any Investor.
4.
INDEMNIFICATION . The Investors jointly and
severally hereby agree to, and do hereby, indemnify and hold
harmless the Company, and the Company’s stockholders,
directors, officers, employees, and other agents, from,
against and with respect to any and all loss or damage
arising out of or due to any inaccuracy in, breach of, or
noncompliance with any of any Investor’s
representations, warranties, covenants, or other provisions
of this Agreement.
5.
AGREEMENTS WITH RESPECT TO COMPANY . Each
Investor and each Joining Party represents and warrants to the
Company that, after the sale of the Stock and surrender of the
Warrants to the Company as contemplated in this Agreement, no
Investor or Joining Party owns, directly or indirectly, in
record name or beneficially, any Company Stock (as that term
is defined in Section 5(a) below) or any direct or indirect
rights or options to acquire any Company Stock (other than the
Retained Shares). Each Investor and each Joining
Party hereby agrees that, during the period commencing on the
date hereof and ending on the day that is five (5) years after
the date hereof, none of the Investors nor the Joining Parties
nor any of their affiliates or associates (i) will directly or
indirectly or (ii) will directly or indirectly solicit,
request, advise, aid, assist, or encourage any other person or
entity to:
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