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EXHIBIT 10.11
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STOCK PURCHASE AGREEMENT
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This Stock Purchase Agreement is made and entered into as of February
17, 2000 (the "Effective Date"), by and between Telxon Corporation, a Delaware
corporation ("Telxon"), and the following shareholders of Metanetics
Corporation, a Delaware Corporation ("Metanetics"): ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇, D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇ ▇▇ ▇▇▇▇▇
(collectively referred to herein as the "Selling Shareholders").
WHEREAS, Telxon has entered into a Stock Purchase Agreement, dated as
of January 19, 2000 (the "Accipiter Agreement") with Accipiter Corporation and
Accipiter II, Inc. (collectively referred to herein as "Accipiter" and together
constituting all of the minority shareholders of Metanetics other than the
Selling Stockholders) providing for the acquisition of all of Accipiter's
Metanetics shares by Telxon and contemplating Telxon's acquisition of all of the
Selling Stockholders' Metanetics shares, and
WHEREAS, the Selling Shareholders wish to sell shares of common stock
they own in Metanetics on the terms and conditions set forth herein and Telxon
wishes to buy those shares of Metanetics stock from the Selling Shareholders
upon those terms and conditions,
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises contained herein, the parties agree as follows:
1. At the Closing Date (as defined below), Telxon (or such subsidiary
as Telxon may designate; Telxon or such designated subsidiary sometimes being
referred to herein as "Purchaser") will purchase from the Selling Shareholders
the 475,000 shares of
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common stock of Metanetics owned by the Selling Shareholders (in the amounts set
forth on Exhibit A hereto) for a purchase price of $6.73 per share of Metanetics
common stock (the "Transaction Price"), payable in cash (without interest) at
the earlier of the following dates: (i) the date that is five (5) business days
after the closing of the pending merger transaction between Cisco Systems, Inc.
and Telxon's former Aironet Wireless Communications, Inc. subsidiary, or (ii)
August 18, 2000.
2. As indicated on Exhibit A, certain of the Selling Shareholders owe
indebtedness to Telxon, Metanetics, or one of its other subsidiaries in respect
of the purchase price for his Metanetics shares or taxes advanced on his behalf
in connection with his acquisition thereof. Telxon and each of such Selling
Shareholders agree that (i) the consideration that the Selling Shareholder would
otherwise receive under section 1 hereof shall be reduced by the amount of the
outstanding indebtedness as confirmed by separate written acknowledgment
executed and delivered by Telxon and such Selling Shareholder contemporaneous
with such Selling Shareholder's execution and delivery of this Agreement, and
(ii) upon the consummation of the purchase of his shares under this Agreement,
the promissory note, if any, evidencing such indebtedness shall be cancelled,
marked "paid in full" and returned to the Selling Shareholder obligated
thereunder (to the extent any such indebtedness is held by a subsidiary, Telxon
agrees to cause such subsidiary to effect the forgoing).
3. Telxon represents and warrants to the Selling Shareholders that its
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by 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
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signing this Agreement for it below. Giving effect to the waivers with respect
to the Amended and Restated Shareholder Agreement by and among Metanetics and
the shareholders of Metanetics dated March 28, 1996 (as amended to date, the
"Shareholders' Agreement") set forth in section 4, each of the Selling
Shareholders represents and warrants to Purchaser that (i) he currently has
(subject only to his agreements with Telxon or one of its subsidiaries with
respect to any indebtedness he may owe as referenced in section 2), and will
deliver to Telxon on the Closing Date (giving effect to the offset of any such
indebtedness against the amounts otherwise payable to him hereunder as provided
in said section 2), full, valid and complete title to and ownership
(beneficially and of record) of the Metanetics shares being purchased pursuant
to section 1 above, free and clear of any lien or other encumbrance and (ii)
such Metanetics shares represent all of Metanetics stock owned by such Selling
Shareholder.
4. Pursuant to Article 3 of the Shareholders' Agreement, Metanetics and
the shareholders of Metanetics have certain rights that are triggered in the
event of a proposed sale of shares by a shareholder of Metanetics. In order to
allow the transactions contemplated by this Agreement to take place, certain
rights under Article 3 of the Shareholders' Agreement must be waived. Therefore,
Metanetics and each of the Selling Shareholders hereby waives any and all
rights, including but not limited to those granted under Article 3 of the
Shareholders' Agreement, to participate in the purchase and sale of the
Metanetics common stock contemplated by this Agreement. Furthermore, because
this transaction will terminate the status of each of the Selling Shareholders
as a Metanetics shareholder, each of the Selling Shareholders also waives any
and all rights that he has under the Shareholders' Agreement with respect to any
future transaction
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involving the common stock of Metanetics and agrees that he shall have no rights
or responsibilities under such Shareholders' Agreement after the Closing Date.
5. The transactions contemplated by this Agreement are undertaken in
contemplation (and on the condition) that (A) Telxon (directly and/or through a
wholly-owned subsidiary) will become the only shareholder(s) of Metanetics
through the acquisition of the Accipiter shares as contemplated by the Accipiter
Agreement and (B) the Accipiter Agreement, as the same may be supplemented,
amended, restated or superseded, continue to provide (as it currently does) for
all Metanetics directors and employees whose July 29, 1998 options to purchase
Metanetics stock were rescinded and cancelled to receive cash payments in
respect of such options equal to the excess of the Transaction Price over the
option exercise price. In fulfillment of the Accipiter Agreement, Telxon will
acquire beneficial ownership of Accipiter's Metanetics shares through the merger
of Metanetics into a wholly-owned subsidiary of Telxon shortly after the Closing
Date intended to qualify as a tax-free reorganization (the "Metanetics Merger")
whereby, based on the Transaction Price, less the indebtedness owed to Telxon
and its subsidiaries in respect of Accipiter's Metanetics stock, and on the
market value of Telxon's common stock as of the time of the parties' entry into
the Accipiter Agreement, Accipiter will receive at the closing thereunder,
planned to occur within a matter of days after the closing hereunder, in
exchange for its Metanetics shares 477,790 shares of unregistered shares of
Telxon common stock, the transferability of which will be restricted under SEC
Rule 144 unless and until Telxon is able to effect an S-3 registration thereof
on or after July 1, 2000. In order to allow the transactions contemplated by
this Agreement to take place, each of Metanetics and each of the Selling
Shareholders hereby waives any and all rights, including but not limited to
those granted under Article 3 of the
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Shareholders' Agreement, to participate in Accipiter's disposition of its
Metanetics shares to Telxon as contemplated by the Accipiter Agreement, as the
same may be supplemented, amended, restated or superseded consistent with the
merger transaction described above. Furthermore, each of the Selling
Shareholders also waives any and all claim that he may have, under the
Shareholders' Agreement or otherwise, to participate, or to receive
consideration for his Metanetics shares like that to be received by Accipiter,
in the Metanetics Merger, and acknowledges and agrees that Telxon (or any
subsidiary thereof that may succeed to the Metanetics shares he delivers to
Telxon on the Closing Date pursuant to this Agreement) shall, as the owner
thereof, be entitled to vote such shares in favor of the Metanetics Merger. If
the Metanetics Merger does not take place for any reason within five (5)
business days after the Closing Date, (i) this Agreement shall be null and void,
(ii) the shares of Metanetics stock transferred hereunder shall be returned to
the Selling Shareholders, and (iii) the Shareholders' Agreement shall be
reinstated in full force and effect.
6. This transaction will close on or before February 17, 2000 or as
soon as reasonably practicable hereafter following the effectiveness of this
Agreement as provided in section 12 (the "Closing Date").
7. Each party shall bear their own expenses in connection with and all
taxes that result from this transaction.
8. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, and no representations or promises
except those set forth herein have been made to induce any party to enter into
this Agreement. The Selling Shareholders agree to execute and deliver at or
after the closing hereunder such
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stock powers and other documents as may reasonably be requested by Telxon from
time to time to more fully evidence or effect this transaction.
9. 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.
10. 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.
11. 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.
12. 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. This Agreement shall become effective only upon the
execution and delivery of this Agreement by Telxon and its receipt of duly
executed and delivered counterparts from Metanetics and each of the Selling
Shareholders and the Accipiter entities.
13. The provisions of this Agreement are intended for the benefit of
the parties hereto and their permitted designees, if any, and no third party
shall be entitled to enforce or rely upon the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TELXON CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President,
Chief Financial Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
/s/ D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ Yung Fu ▇▇▇▇▇
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Yung Fu ▇▇▇▇▇
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The undersigned hereby join as signatories to the foregoing Stock Purchase
Agreement as of the date first above written for the sole and limited purpose of
agreeing to the waivers and agreement on their respective parts as provided in
sections 4 and 5 above.
METANETICS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Chairman
ACCIPITER CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Treasurer & CFO
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ACCIPITER II, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Treasurer & CFO
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Exhibit A
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Name of Selling Shareholder Shares of Metanetics Stock
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ * 10,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ * 10,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 15,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 20,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 20,000
▇▇▇▇ ▇. ▇▇▇▇▇ 30,000
D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 30,000
▇▇▇▇ ▇▇▇ * 80,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ * 100,000
Yung Fu ▇▇▇▇▇ 160,000
* Owes indebtedness to Telxon in respect of the purchase price for his
Metanetics shares or taxes advanced on his behalf in connection with his
acquisition thereof confirmed by separate written acknowledgment as provided in
section 2 of the Agreement.
