STOCK PURCHASE AND SALE AGREEMENT
THIS STOCK PURCHASE AND SALE AGREEMENT (this "Agreement") entered into
on January 20, 2003 between Mellon Ventures, L.P., a Delaware limited
partnership ("Mellon"), and Tandem PCS Investments, L.P., a Delaware limited
partnership ("Tandem").
RECITALS
A. Pursuant to Section 6(a) of the Series B Convertible Preferred Stock
Certificate of Designation of the Company, each of Mellon and Tandem (i) has
provided to AirNet Communications Corporation (the "Company") notice, in a
letter dated as of the date hereof addressed to the Company, of its election to
convert and exchange the 318,471.33 shares of Series B Convertible Preferred
Stock, $.01 par value ("Series B Preferred Stock"), of the Company that it holds
into 6,369,427 shares of the Company's common stock, $.001 par value (the
"Common Stock") and (ii) has agreed to deposit the certificate representing the
Series B Preferred Stock in escrow pursuant to an Escrow Agreement among the
Company, Mellon, Tandem, SCP Private Equity Partners II, L.P. ("SCP") and
Xxxxxxx & Xxxxxx, LLP, as escrow agent, dated as of the date hereof.
B. TECORE, Inc. and SCP, or affiliates thereof, are contemplating a joint
financing of the Company in an amount of at least U.S.$16,000,000.00 (the
"Proposed Transaction").
C. Contemporaneously with the closing of the Proposed Transaction (the
"Closing"), Tandem has agreed to sell to Mellon, and Mellon has agreed to
purchase from Tandem, all the shares of Common Stock then held by Tandem for an
aggregate purchase price of U.S.$500,000.00 (the "Purchase Price").
AGREEMENT
In consideration of the premises and the mutual agreements and
covenants herein contained, the parties hereby agree as follows:
1. At the Closing, Tandem shall sell to Mellon, and Mellon shall purchase from
Tandem, all of Tandem's Common Stock.
2. The consideration for the purchase and sale of the Common Stock shall be the
Purchase Price, which Mellon shall convey to Tandem in the form of a banker's
check payable to the order of Tandem or such other person or persons designated
by Tandem in a writing addressed to Mellon, or a wire transfer into an account
that Tandem shall designate in writing.
3. Power of Attorney
(a) Tandem hereby irrevocably appoints Xxxxxx X. Xxxxxx, the Company's
Secretary ("Dawley"), acting alone, its true and lawful attorney, with full
power of substitution for Tandem and in its name, place and stead to do all acts
and enter into all transactions that he shall deem necessary or proper to
convey, assign and transfer the Common Stock to Mellon (the "Transfer"),
including without limitation to execute, acknowledge and deliver a stock power
and/or all other documents in connection with such Transfer to the Company and
to do all other acts which may be necessary or proper in connection with such
Transfer or for carrying out any power incidental thereto.
(b) Tandem hereby gives Dawley, as its lawfully designated attorney,
full power and authority to do every necessary or proper act that any of its
employees, agents or representatives might or could do if personally present at
the time of the Transfer, hereby ratifying and confirming all Dawley shall
lawfully do or cause to be done by virtue of this power of attorney in
connection with such Transfer.
4. This Agreement shall be null and void if the Closing does not occur by 5:00
p.m. EST, Wednesday, April 30, 2003.
5. This Agreement shall be governed by and construed under the laws of the State
of Delaware (without regard to its conflicts of law rules).
6. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument.
7. Tax Consequences. This Agreement and the transactions contemplated in
connection herewith are intended to represent a "recapitalization" within the
meaning of Section 368(a)(1)(C) of the Internal Revenue Code of 1986, as
amended. The parties agree that they will report the transaction accordingly.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a document under seal by their duly authorized officers as of the
day and year first above written.
MELLON VENTURES, L.P.
By: MVMA, L.P.
Its: General Partner
By: MVMA, Inc.
Its: General Partner
By: /s/ Xxxx X. Xxxx
-------------------------
Name: Xxxx X. Xxxx
Title: Partner
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TANDEM PCS INVESTMENTS, L.P.
By: Live Cycles Holding Co.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: President
By: /s/ Xxxxxx Safard
-------------------------
Name: Xxxxxx Safard
Title: Vice-President
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