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EXHIBIT 10.12.1
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INVESTMENT AND REGISTRATION RIGHTS AGREEMENT
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THIS INVESTMENT AND REGISTRATION RIGHTS AGREEMENT (this "Agreement")
made as of this 22nd day of February, 2000, by and between ACCIPITER
CORPORATION, ACCIPITER II, INC. (together, the "Minority Shareholders"), TELXON
CORPORATION ("Telxon"), META TECHNOLOGIES CORPORATION ("MetaTechnologies") and
METANETICS CORPORATION ("Metanetics") in fulfillment of certain conditions of
the Plan and Agreement of Merger (the "Merger Agreement"), dated as of even date
herewith, among Telxon, MetaTechnologies and Metanetics . Capitalized terms used
but not otherwise defined in this Agreement shall have the meanings given them
in the Merger Agreement.
WHEREAS, Telxon and the Minority Shareholders are parties to a Stock
Purchase Agreement (the "Stock Purchase Agreement"), dated as of January 19,
2000, providing for the acquisition by Telxon, directly or through its
subsidiaries, of all of the stock held by the Minority Shareholders in
Metanetics effected either as an outright purchase of such shares by Telxon or
in such manner intended to qualify as a tax-free reorganization under Section
368 ("Tax-Free Reorganization") of the Internal Revenue Code of 1986, as amended
(the "Code"), upon which the parties may agree;
WHEREAS, pursuant to the terms of the Merger Agreement, which is being
undertaken as the agreed alternative structure contemplated by the Stock
Purchase Agreement for effecting Telxon's acquisition of the Metanetics Common
Stock of the Minority Shareholders, the Minority Shareholders will be receiving
unregistered, and hence subject to certain transferability restrictions under
the federal securities laws, shares of Telxon Common Stock in exchange for their
Metanetics Common Stock and the cancellation of certain indebtedness owed with
respect thereto; and
WHEREAS, the parties desire to enter into this Agreement to address as
between them certain collateral matters relating to the transactions
contemplated by the Merger Agreement.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES.
(a) Telxon represents and warrants to each of the Minority
Shareholders, and each of the Minority Shareholders represents and warrants to
Telxon, that its execution and delivery of this Agreement and its consummation
of the transactions contemplated hereby have been duly authorized by
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all required action of its Board of Directors and any and all other necessary
corporate action and that this Agreement has been duly executed and delivered
for and on its behalf by the duly authorized officer signing this Agreement for
it below.
(b) Telxon further represents and warrants to each of the
Minority Shareholders that the execution and delivery of the Merger Agreement by
Telxon and MetaTechnologies and the consummation on their respective parts of
the transactions contemplated thereby have been duly authorized by all required
action of their respective Boards of Directors and any and all other corporate
action necessary on their respective parts and that the Merger Agreement has
been duly executed and delivered for and on behalf of each of them by their
respective duly authorized officers signing the same.
(c) Each of the Minority Shareholders further represents and
warrants to Telxon that (except for the debt arrangements owed Telxon or its
affiliates to be cancelled as provided in the Merger Agreement and the
procedures required by the Amended and Restated Shareholder Agreement, dated as
of March 28, 1996 by and among Metanetics and its stockholders, as amended (the
"Shareholder Agreement"), written waivers of which procedures by all of the
other Metanetics stockholders having rights under such Shareholder Agreement
with respect to the transactions contemplated by this Agreement shall be
delivered to Telxon and MetaTechnologies as a condition of the closing under the
Merger Agreement), it currently has, and will at the time of the consummation of
the Merger under the Merger Agreement have, full, valid and complete title to
and ownership (beneficially and of record) of its Metanetics Common Stock, free
and clear of any lien or other encumbrance.
(d) Each of Telxon and MetaTechnologies, as to itself, makes
the following representations to each of the Minority Shareholders at their
request with respect to the following matters of fact or intention which may
affect the tax treatment of the Merger under the Code:
(i) The fair market value of the Telxon stock received by each
Minority Shareholder, plus the other consideration to be received by
such shareholder, will be approximately equal to the fair market value
of the Metanetics stock surrendered therefor.
(ii) Nothing has come to the attention of the management of
Telxon and MetaTechnologies in the course of the negotiation and entry
into the Merger Agreement to the effect that there is any plan or
intention by the Minority Shareholders to sell, exchange, or otherwise
dispose (to Telxon or any corporation or partnership related to Telxon)
of a number of shares of Telxon stock received in the Merger that would
reduce the Minority Shareholders' ownership of Telxon stock to a number
of shares having a value, as of the date of the Merger, of less than 50
percent of the value of the formerly outstanding stock of Metanetics
owned by such shareholders as of the same date. For purposes of this
representation, shares of Metanetics stock surrendered by dissenters,
or exchanged for cash in lieu of fractional shares of Telxon stock, if
any, will be considered to be outstanding Metanetics stock on the date
of the Merger. Moreover, shares of
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Metanetics stock and shares of Telxon stock held by the Minority
Shareholders and otherwise sold, redeemed, or disposed of prior or
subsequent to the Merger will be considered in making this
representation.
(iii) MetaTechnologies will acquire at least 90 percent of the
fair market value of the net assets and at least 70 percent of the fair
market value of the gross assets held by Metanetics immediately prior
to the Merger. For purposes of this representation, amounts paid by
Metanetics to dissenters, amounts used by Metanetics to pay its
reorganization expenses, amounts paid by Metanetics to shareholders who
receive cash or other property, and all redemptions and distributions
(except for regular normal dividends) made by Metanetics immediately
preceding the Merger, if any, will be included as assets of Metanetics
held immediately prior to the Merger.
(iv) Prior to the Merger, Telxon will be in control of
MetaTechnologies within the meaning of Section 368(c) of the Code.
(v) Following the Merger, MetaTechnologies will not issue
additional shares of its stock that would result in Telxon losing
control of MetaTechnologies within the meaning of Section 368(c) of the
Code.
(vi) Telxon has no plan or intention to reacquire any of its
stock issued in the Merger.
(vii) Telxon has no plan or intention to liquidate
MetaTechnologies; to merge MetaTechnologies with and into another
corporation; or to sell or otherwise dispose of the stock of
MetaTechnologies. MetaTechnologies has no plan or intention, and Telxon
has no plan or intention to cause MetaTechnologies, to sell or
otherwise dispose of any of the assets of Metanetics acquired in the
Merger, except for dispositions made in the ordinary course of business
or transfers described in Section 368(a)(2)(C) of the Code.
(viii) To the best of the actual knowledge of the management
of Telxon and MetaTechnologies (having made no investigation for the
purposes of making this representation), the liabilities of Metanetics
assumed by MetaTechnologies and the liabilities to which the
transferred assets of Metanetics are subject were incurred by
Metanetics in the ordinary course of its business.
(ix) Following the Merger, MetaTechnologies will continue the
historic business of Metanetics or use a significant portion of the
historic business assets of Metanetics in a business.
(x) Telxon and MetaTechnologies will pay their respective
expenses, if any, incurred in connection with the Merger.
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(xi) There is no intercorporate indebtedness existing between
Telxon, MetaTechnologies, and Metanetics that was issued, acquired, or
will be settled at a discount.
(xii) Neither Telxon nor MetaTechnologies is an investment
company as defined in Section 368(a)(2)(F)(iii) and (iv) of the Code.
(xiii) The fair market value of the assets of Metanetics
transferred to MetaTechnologies will equal or exceed the sum of the
liabilities assumed by MetaTechnologies, plus the amount of
liabilities, if any, to which the transferred assets are subject.
(xiv) No stock of MetaTechnologies will be issued in the
Merger.
(e) Metanetics makes the following representations to each of
the Minority Shareholders at their request with respect to the following matters
of fact or intention which may affect the tax treatment of the Merger under the
Code:
(i) The fair market value of the Telxon stock received by the
Minority Shareholders plus the other consideration to be received by
such shareholders, will be approximately equal to the fair market value
of the Metanetics stock surrendered therefor.
(ii) Nothing has come to the attention of Metanetics'
management in the course of the negotiation and entry into the Merger
Agreement to the effect that there is any plan or intention by the
shareholders of Metanetics to sell, exchange, or otherwise dispose (to
Telxon or any corporation or partnership related to Telxon) of a number
of shares of Telxon stock received in the Merger that would reduce the
Metanetics shareholders' ownership of Telxon stock to a number of
shares having a value, as of the date of the Merger, of less than 50
percent of the value of the formerly outstanding stock of Metanetics
owned by such shareholders as of the same date. For purposes of this
representation, shares of Metanetics stock surrendered by dissenters,
or exchanged for cash in lieu of fractional shares of Telxon stock, if
any, will be considered to be outstanding Metanetics stock on the date
of the Merger. Moreover, shares of Metanetics stock and shares of
Telxon stock held by Metanetics shareholders and otherwise sold,
redeemed, or disposed of prior or subsequent to the Merger will be
considered in making this representation.
(iii) MetaTechnologies will acquire at least 90 percent of the
fair market value of the net assets, and at least 70 percent of the
fair market value of the gross assets, held by Metanetics immediately
prior to the Merger. For purposes of this representation, amounts paid
by Metanetics to dissenters, amounts used by Metanetics to pay its
reorganization expenses, amounts paid by Metanetics to shareholders who
receive cash or other property, and all redemptions and distributions
(except for regular normal
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dividends) made by Metanetics immediately preceding the Merger, if any,
will be included as assets of Metanetics held immediately prior to the
Merger.
(iv) The liabilities of Metanetics assumed by MetaTechnologies
and the liabilities to which the transferred assets of Metanetics are
subject were incurred by Metanetics in the ordinary course of its
business.
(v) Metanetics will pay its expenses, if any, incurred in
connection with the Merger.
(vi) There is no intercorporate indebtedness existing between
Telxon, MetaTechnologies, and Metanetics that was issued, acquired, or
will be settled at a discount.
(vii) Metanetics is not an investment company as defined in
Section 368(a)(2)(F)(iii) and (iv) of the Code.
(viii) Metanetics is not under the jurisdiction of a court in
a Title 11 or similar case within the meaning of Section 368(a)(3)(A)
of the Code.
(ix) The fair market value of the assets of Metanetics
transferred to MetaTechnologies will equal or exceed the sum of the
liabilities assumed by MetaTechnologies, plus the amount of
liabilities, if any, to which the transferred assets are subject.
(f) The representations and warranties contained in this
Section 1 shall be true in all material respects on and as of the Closing Date
with the same force and effect as though such representations and warranties had
been made on and as of the Closing Date. Each party shall give prompt notice to
the others of any event, condition or circumstance occurring from the date
hereof through the Closing Date that would constitute a violation or breach of
any representation, warranty or covenant on its part contained in this
Agreement.
2. INVESTMENT INTENT. Each of the Minority Shareholders makes the
following representations, warranties, acknowledgements and agreements to Telxon
with respect to the issuance of the Telxon Common Stock to be issued to it
pursuant to the Merger Agreement:
(a) Each Minority Shareholder understands that the Telxon
Common Stock will not, at the time of the issuance thereof under the Merger
Agreement, have been registered under the Securities Act of 1933, as amended
(the "Securities Act"), or any state securities laws;
(b) The Telxon Common Stock to be issued to it pursuant to the
Merger Agreement is so being offered and sold pursuant to exemptions from
registration contained in the Securities Act and applicable state securities
laws based in part upon the Minority Shareholder's representations contained in
this Section 2;
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(c) The Minority Shareholder has had the opportunity to its
satisfaction to review Telxon's quarterly and annual reports to and other
filings with the United States Securities and Exchange Commission (the "SEC")
and to ask questions of and receive answers from Telxon management regarding the
business, assets, financial condition, prospects and affairs of Telxon;
(d) Each Minority Shareholder is an "accredited investor" (as
such term is defined in Rule 501 under the Securities Act of 1933, as amended
(the "Securities Act")) and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of its
investment in the Telxon Common Stock and of protecting its interests in
connection with such investment;
(e) The Minority Shareholder is not aware of the publication
of any advertisement in connection with the Telxon Common Stock to be issued as
contemplated by this Agreement or the Stock Purchase Agreement superseded by
this Agreement;
(f) Each Minority Shareholder is acquiring the Telxon Common
Stock for its own account for investment only, and not with a view toward the
distribution thereof, can bear a total loss of the investment without materially
impairing its financial condition, and can bear the economic risk of the
investment indefinitely; and
(g) Each Minority Shareholder understands that it cannot
resell the Telxon Common Stock to be issued to it pursuant to the Merger
Agreement unless and until such securities are registered under the Securities
Act and/or applicable state securities laws or an exemption from such
registration is available, that the certificate(s) evidencing the Telxon Common
Stock to be issued to it pursuant to the Merger Agreement will be legended
regarding the absence of and necessity for such registration, and that there is
no assurance that any registration exemption will be available or that, if
available, such exemption will allow the Minority Shareholder to transfer all or
any portion of such Telxon Common Stock it may subsequently desire to transfer
when and in the amounts desired to be transferred.
The representations and warranties contained in this Section 2 shall be true in
all material respects on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made on and as of
the Closing Date. Each Minority Shareholder shall give prompt notice to Telxon
of any event, condition or circumstance occurring from the date hereof through
the Closing Date that would constitute a violation or breach of any
representation, warranty or covenant on its part contained in this Agreement.
3. REGISTRATION OF TELXON COMMON STOCK.
(a) Telxon agrees that, as soon as reasonably practicable
following Telxon becoming eligible to do so, it will use its reasonable best
efforts to (i) file a registration statement on Form S-3 (or similar successor
form) to register the Telxon Common Stock issued to the Minority Shareholders
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pursuant to the Merger Agreement (the "Registrable Securities") with the SEC
under the Securities Act for resale by the Minority Shareholders as selling
stockholders and (ii) cause the same to become effective. In connection with the
effecting of such registration, Telxon shall afford the Minority Shareholders
reasonable opportunity to review and comment upon any preliminary or final
prospectus forming a part of the registration statement, and each of the
Minority Shareholders agrees to promptly and fully provide to Telxon such
cooperation in the effecting of such registration as Telxon may from time to
time reasonably request. Notwithstanding the foregoing, Telxon may postpone for
a reasonable time registration of the Registrable Securities if such
registration would materially adversely affect (including, without limitation,
through the premature disclosure thereof) a proposed financing, reorganization,
recapitalization, merger, consolidation, or similar transaction or if Telxon is
conducting a public offering of capital stock or other securities and the
managing underwriter concludes, in its reasonable judgment, that registration of
the Registrable Securities would materially adversely affect such offering.
(b) Telxon will use its best efforts to cause any registration
effected pursuant to Section 3(a) (the "Registration Statement") to remain
effective (with a prospectus at all times meeting the requirements of the
Securities Act) until such time as the Registrable Securities become eligible to
be re-sold by the Minority Shareholders in reliance upon SEC Rule 144. Telxon
will use its best efforts to effect such qualifications under applicable state
securities laws, and maintain the effectiveness of such qualifications for the
period that the Registration Statement is required to remain effective, as may
reasonably be requested by the Minority Shareholders (provided that Telxon shall
not be obligated to file a general consent to service of process or qualify to
do business as a foreign corporation or otherwise subject itself to taxation in
any jurisdiction solely for the purpose of any such qualification) to permit or
facilitate such sale. Telxon shall not be required to register the Registrable
Securities under any provision of foreign law.
(c) Telxon agrees to furnish to each Minority Shareholder a
sufficient number of prospectuses or similar documents incident to any
registration, qualification or compliance referred to in this Section 3, as such
Minority Shareholder may from time to time reasonably request.
(d) Promptly upon each request therefor in connection with any
registration, qualification or compliance referred to in this Section 3, each
Minority Shareholder shall furnish to Telxon information concerning its holdings
of Telxon Common Stock and the proposed manner of sale or other distribution
thereof, which information shall be correct and complete in all material
respects and shall not omit to state any material fact necessary to make such
information, in light of the circumstances, not misleading. Moreover, if, at any
time during the period that the Registration Statement is required to remain
effective, any event relating to a Minority Shareholder, its holdings of Telxon
Common Stock or its manner of sale or other distribution thereof shall occur
which would cause any information theretofore provided by the Minority
Shareholder to Telxon for use in connection with any registration, qualification
or compliance referred to in this Section 3 to constitute an untrue statement of
a material fact, or to omit to
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state any material fact necessary to make such information, in light of the
circumstances, not misleading, the Minority Shareholder agrees promptly to
notify Telxon thereof and to promptly and fully cooperate with Telxon with
respect to any amendment or other corrective action which may be required as a
result in connection with any such registration, qualification or compliance.
(e) Telxon shall bear all securities registration fees, fees
and expenses of its counsel and accountants, and financial printers' and similar
out-of-pocket costs incident to the preparation, filing and maintaining of the
effectiveness of the registration, qualification and compliance referred to in
this Section 3, but shall not be responsible for any brokerage, attorneys or
other fees or expenses incurred by the selling stockholders in connection with
their re-sale the Registrable Securities.
4. INDEMNIFICATION.
(a) Telxon shall defend, indemnify and hold harmless each
Minority Shareholder, each of its officers, directors and partners, and each
person, if any, who controls such Minority Shareholder, and each underwriter (if
any) acting for or on behalf of such Minority Shareholder from and against any
and all loss, damage, liability, cost and expense to which any such indemnified
person or entity may become subject under the Securities Act or otherwise, to
the extent arising out of or based on any untrue statement (or alleged untrue
statement) of any material fact contained in a Registration Statement, any
prospectus contained therein or any amendment or supplement thereto, or any
other registration, qualification or compliance effected pursuant to Section 3,
or arising out of or are based upon the omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading; provided, however, that Telxon will not be liable in any such case
to the extent that any such loss, damage, liability, cost or expense arises out
of or is based upon an untrue statement or omission so made in conformity with
information furnished to the Company by such selling Holder, such a controlling
person, or such underwriter, and stated to be specifically for use therein.
(b) Each Minority Shareholder shall defend, indemnify and hold
harmless Telxon, each other Minority Shareholder and each person, if any, who
controls Telxon or such other Minority Shareholder, and each underwriter (if
any) acting for or on behalf of such other Minority Shareholder from and against
any and all loss, damage, liability, cost and expense to which any such
indemnified person or entity may become subject under the Securities Act or
otherwise, to the extent arising out of or based on any breach by the Minority
Shareholder of its obligations under Section 3(d) or any untrue statement (or
alleged untrue statement) of any material fact contained in a Registration
Statement, any prospectus contained therein or any amendment or supplement
thereto, or any other registration, qualification or compliance effected
pursuant to Section 3, or arise out of or are based upon the omission (or
alleged
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omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, to the extent, but only to the extent, that any
such loss, damage, liability, cost or expense arises out of or is based upon an
untrue statement or omission made in reliance upon and in conformity with
information furnished to Telxon by or at the direction of the Minority
Shareholder. The Minority Shareholder's indemnification obligation under this
Section 4(b) shall be limited to such Minority Shareholder's holdings of
Registrable Securities and the proceeds from the sale thereof.
(c) Promptly after receipt by an indemnified party of notice
of any claim, liability or expense to which the indemnification obligations set
forth in Sections 4(a) or 4(b) would apply, the indemnified party shall give
notice thereof in writing to the indemnifying party. Such notice shall state the
information then available regarding the amount and nature of such claim,
liability or expense. If, within twenty (20) days after receiving such notice,
the indemnifying party gives written notice to the indemnified party stating
that (i) it would be liable under the provisions hereof for indemnity in the
amount of such claim if such claim were successful and (ii) that it disputes and
intends to defend against such claim, liability or expense at its own cost and
expense, then counsel for the defense shall be selected by the indemnifying
party (subject to the consent of the indemnified party, which consent shall not
be unreasonably withheld or delayed), and the indemnified party shall not be
required to make any payment with respect to such claim, liability or expense as
long as the indemnifying party is conducting a good faith and diligent defense
at its own expense. The indemnifying party shall have the right, with the
consent of the indemnified party, which consent shall not be unreasonably
withheld or delayed, to settle all indemnifiable matters related to claims by
third parties which are susceptible to being settled, provided its obligation to
indemnify the indemnifying party therefor will be fully satisfied. The
indemnifying party shall keep the indemnified party appraised of the status of
the claim, liability or expense and any resulting suit, proceeding or
enforcement action, shall furnish the indemnified party with all documents and
information that the indemnified party shall reasonably request and shall
consult with the indemnified party prior to acting on major matters, including
settlement discussions. The indemnified party shall make available to the
indemnifying party all information and assistance that the indemnifying party
may reasonably request and shall cooperate with the indemnifying party in any
defense undertaken by it pursuant to this Section 4. Notwithstanding anything
herein to the contrary, the indemnified party shall at all times have the right
to fully participate in such defense at its own expense directly or through
counsel; provided, however, if the named parties to the action or proceeding
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate under applicable
standards of professional conduct, the expense of separate counsel for the
indemnified party shall be paid by the indemnifying party. If no such notice of
intent to dispute and defend is given by the indemnifying party, or if such
diligent good faith defense is not being or ceases to be conducted, the
indemnified party may, at the
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expense of the indemnifying party, undertake the defense of (with counsel
selected by the indemnified party), and shall have the right to compromise or
settle (exercising reasonable business judgment), such claim, liability or
expense.
5. TAXES AND EXPENSES. While the parties intend that the Merger qualify
as a Tax-Free Reorganization and hereby agree that they shall not take any
position. on a tax return or in any proceeding before a taxing authority, with
respect to the transactions being effected under or as contemplated by this
Agreement at or about the Effective Time or any of the matters relating to the
tax treatment of the Merger covered by the representations with respect thereto
set forth in Section 1 hereof which is contrary to such intended treatment,
unless, and then only in the respect(s), otherwise required by law or judicial
or administrative process, no party to this Agreement or to the Merger Agreement
is making or shall be deemed (i) to make any representation to any other party
hereto regarding any matter relating to the tax treatment of the Merger or any
of the transactions contemplated hereby or thereby other than those expressly
set forth in Section 1 hereof, nor (ii) to make any warranty or guaranty to any
other party hereto or thereto that the tax treatment of the Merger and the
transactions contemplated hereby and by the Merger Agreement will be consistent
with such intended treatment. Except as otherwise provided in Section 8 of the
Stock Purchase Agreement, each party shall bear its own expenses in connection
with, and all taxes that may result from, the Merger and the other transactions
contemplated by this Agreement.
6. NOTICES. Any notice required hereunder shall be in writing and shall
be deemed to have been given upon receipt, or if sent by facsimile transmission,
upon confirmation of transmission, or if sent by overnight courier, the first
business day after timely deposit with the courier for next business day
delivery as follows:
To a Minority Shareholder: c/x Xxxxxxx Management
-------------------------- 000 Xxx Xxxx
Xxxxx, XX 00000
Fax Number: 000-000-0000
To Telxon, Metanetics Telxon Corporation
--------------------- 0000 Xxxx Xxxxxx Xxxxxx
or MetaTechnologies: Xxxxx, XX 00000
-------------------- Attn: Legal Department
Fax Number: 000-000-0000
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or to such other address of which any party may notify the other parties
provided in accordance with this Section 6.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and together with
the Merger Agreement, supersedes and replaces all of the provisions of the Stock
Purchase Agreement other than Telxon's obligation under Section 8 thereof to
reimburse certain expenses of the Minority Shareholders, which provisions (other
than said reimbursement obligation) shall be of no further force and effect,
except that, if for any reason the Merger Agreement is terminated without
consummation of the Merger, (i) this Agreement shall be null and void, and (ii)
the Stock Purchase Agreement shall be reinstated in full force and effect. No
representations or promises except those set forth herein or in the Merger
Agreement have been made to induce any party to enter into this Agreement.
8. AMENDMENTS. This Agreement may be amended, modified or superseded
and any of its terms or covenants may be waived only by an instrument in writing
signed by each of the parties hereto or, in the case of a waiver, by or on
behalf of the party waiving compliance.
9. CONSTRUCTION. This Agreement shall be governed by and construed in
accordance with the laws of the state of Ohio, without regard to its conflict of
laws principles, except that the terms of this Agreement shall be interpreted
according to their plain meaning and not strictly for or against any party.
10. DISPUTES. The parties will attempt in good faith to resolve any
controversy arising out of or relating to this Agreement. Any litigation
relating to this Agreement shall be brought by the parties in the courts, state
or federal, sitting in Summit County, Ohio, and in no other forum.
11. EXECUTION IN COUNTERPARTS.This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. SUCCESSORS AND ASSIGNS. This Agreement and the parties' respective
rights and obligations hereunder shall be binding upon and inure to the benefit
of the respective successors and assigns, provided, however, that neither shall
Telxon assign any of its rights or obligations hereunder to any third party
without the prior written consent of both of the Minority Shareholders, nor
shall either of the Minority Shareholders assign any of their respective rights
or obligations hereunder to any third party without the prior written consent of
Telxon, except that any transferee of not less than five thousand (5,000) shares
of Registrable Securities from either Minority Shareholder (other than in a
transaction
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effected pursuant to the Registration Statement or any other registration,
qualification or compliance under Section 3) shall, without the necessity of
obtaining prior consent from Telxon, be entitled to the benefit of the
registration provisions of Section 3 with respect to the Registrable Securities
so acquired as if it were an additional Minority Shareholder originally
signatory to this Agreement, but only if such transferee shall have executed a
written agreement in favor of Telxon agreeing to be bound by all of the terms,
conditions and obligations applicable to a Minority Shareholder under Sections 3
and 4 hereof. The provisions of this Agreement are intended for the benefit of
the parties hereto, and no third party shall be entitled to enforce or rely upon
the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TELXON CORPORATION
By: /s/ XXXX X. XXXXXX, XX.
------------------------------
Title: Chairman & CEO
ACCIPITER CORPORATION
By: /s/ XXXXXXX X. XXXX
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Title: Treasurer & CFO
ACCIPITER II, INC.
By: /s/ XXXXXXX X. XXXX
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Title: Treasurer & CFO
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The undersigned hereby join as signatories to the foregoing Investment and
Registration Rights Agreement as of the date first above written for the sole
and limited purpose of making the representations on their respective parts set
forth in, in the case of MetaTechnologies, Section 1(d) above, and in the case
of Metanetics, Section1(e) above.
META TECHNOLOGIES CORPORATION
By: /s/ X.X. XxXXX
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Title: VP/CFO
--------------------------------
METANETICS CORPORATION
By: /s/ XXXXXX XXXXXXXX
------------------------------------
Title: Pres.
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