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Exhibit 10.14
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement") is made as of March 31,
1998, by and among Aironet Wireless Communications, Inc., a Delaware corporation
with its principal place of business at 000 Xxxxx Xxxx, Xxxxxxxx, Xxxx 00000
(the "Company"), and the parties identified in EXHIBIT A (each an "Investor" and
collectively the "Investors") whose states of organization and principal places
of business are identified opposite their names in EXHIBIT A.
BACKGROUND
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WHEREAS, on August 25, 1993, the Certificate of Incorporation of the
Company was filed by the Secretary of State for the State of Delaware (as
amended through the date of this Agreement, the "Certificate");
WHEREAS, under the Certificate, the authorized capital stock of the
Company consists solely of fifteen million (15,000,000) shares of Common Stock,
$.01 par value (the "Common"); and
WHEREAS, the Board of Directors of the Company has determined it to be
in the best interests of the Company and its stockholders for the Company to
sell, in a private placement, up to One Million Eight Hundred Forty One Thousand
Two Hundred Seventy (1,841,270) newly issued shares of the Common to the
Investors for an aggregate sale price of up to Six Million Four Hundred Forty
Four Thousand Four Hundred Forty Four Dollars ($6,444,444), with warrants to
purchase up to an aggregate of Five Hundred Fifty Two Thousand Three Hundred
Eighty One (552,381) shares of the Common, and the Investors desire to purchase
the shares and warrants on the terms and conditions set forth herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing premises, the
agreements made herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company, on the
one hand, and each of the Investors, severally and not jointly, on the other
hand, agree as follows:
I. PURCHASE AND SALE OF SHARES.
1.1. PURCHASE AND SALE. Subject to the terms and conditions, and in
reliance on the representations, warranties and covenants, set forth herein, at
the Closing (defined herein) the Company shall issue and sell to each of the
Investors, and each Investor shall purchase from the Company, the number of
shares of the Common set forth opposite the Investor's name in EXHIBIT A (each a
"Purchased Share" and collectively the "Purchased Shares") for the purchase
price of Three and 50/100 Dollars ($3.50) per Purchased Share.
1.2. WARRANTS. At Closing, in addition to the Purchased Shares, the
Company shall deliver to each Investor warrants to purchase shares of the Common
in the amount set forth
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opposite the Investors name in EXHIBIT A, on the terms and conditions set forth
in the form of warrant certificate attached as EXHIBIT B (each a "Warrant" and
collectively the "Warrants") (all subsequent references in this Agreement to the
Purchased Shares shall include the associated Warrants ).
1.3. CLOSING. The sale, delivery and the purchase of the Purchased
Shares (the "Closing") shall take place at the offices of Telxon Corporation,
Akron, Ohio on March 31, 1998 at 10:00 A.M.(the "Closing Date"), subject to the
satisfaction or waiver of all of the conditions to Closing set forth herein. At
the Closing the purchase price for its Purchased Shares shall be paid by each
Investor, in the amount set forth opposite the Investor's name in EXHIBIT A, to
the Company by wire transfer in immediately available funds pursuant to the wire
instructions set forth in EXHIBIT C, and against such payment the Company shall
deliver to each Investor a certificate evidencing the Purchased Shares being
acquired by it.
II. REPRESENTATION AND WARRANTIES OF THE COMPANY.
2.1. REPRESENTATIONS AND WARRANTIES; QUALIFICATIONS. The Company makes
to the Investors the representations and warranties set forth in this Article
II. Each such representation and warranty is subject to and qualified by the
exceptions set forth (with reference to a specific Section of this Article II)
in the Company's disclosure schedule attached hereto (the "Company Disclosure
Schedule").
2.2. ORGANIZATION. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware and is
duly qualified or registered to do business as a foreign corporation in each
jurisdiction in which the failure to be so qualified or registered would have a
Material Adverse Effect. As used in this Agreement, the term "Material Adverse
Effect" means any change or effect that is or could reasonably be expected to be
materially adverse to the properties, assets, business, prospects, financial or
other condition or results of operations of the Company and its subsidiaries
taken as a whole or that could reasonably be expected to impair the Company's
ability to perform its obligations hereunder.
2.3. CORPORATE POWER. The Company has all required corporate power and
authority to carry on its business as presently conducted, to enter into and
perform this Agreement and the agreements contemplated hereby to which it is a
party and to carry out the transactions contemplated hereby and thereby,
including the issuance of the Purchased Shares and the shares of the Common
issuable upon exercise of the Warrants (the "Warrant Shares"). The Company is
not in violation of any term of: (i) the Certificate; (ii) its bylaws (as
amended through the date of this Agreement, "Bylaws") or (iii) any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to the Company or to which the Company is a party or by which it is
bound, which, in the case of this clause (iii), could reasonably be expected to
have a Material Adverse Effect.
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2.4. CORPORATE RECORDS. The corporate record books of the Company, as
made available for inspection by the Investors, accurately record all corporate
actions taken by its stockholders, board of directors and committees of its
board of directors. The Company has provided to the Investors true and correct
copies of the Certificate and Bylaws.
2.5. INTER-COMPANY AGREEMENTS. The Company and its parent corporation,
Telxon Corporation ("Telxon"), are parties to a: License, Rights, and Supply
Agreement; Tax Benefit and Indemnification Agreement; and Services Agreement
("Inter-Company Agreements"), true and complete copies of which have been made
available for inspection by the Investors. Each of the Inter-Company Agreements
has been duly authorized by the Company and Telxon, has been duly executed by
each of them, and is the legal, valid, and binding obligation of each of them,
enforceable in accordance with its terms, and of which no defaults exist as of
the date hereof.
2.6. ENFORCEABLE AGREEMENT. This Agreement and all other documents
executed by the Company pursuant hereto are valid and binding obligations of the
Company, enforceable in accordance with their terms, except as limited by the
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and rules and laws governing specific performance, injunctive relief and
other equitable remedies.
2.7. AUTHORIZATION. The execution, delivery and performance of this
Agreement, all agreements, documents and instruments contemplated hereby and the
issuance of the Purchased Shares and the Warrant Shares have been duly
authorized by all necessary action of the Company.
2.8. NON-CONTRAVENTION. The execution of this Agreement, the issuance
and delivery of the Purchased Shares and Warrant Shares and the performance of
the transactions contemplated hereby will not: (i) violate, conflict with or
result in a default under any material contract or obligation to which the
Company is a party or by which it or its assets are bound, or any provision of
the Certificate or its Bylaws, or cause the creation of any encumbrance upon any
of the material assets of the Company; (ii) violate or result in a violation of,
or constitute a material default (whether after the giving of notice, lapse of
time or both) under, any provision of any law, regulation or rule, or any order
of, or any restriction imposed by any court or other governmental agency
applicable to the Company; (iii) require from the Company any notice to,
declaration or filing with, or consent or approval of any governmental
authority; (iv) require from the Company any notice to, declaration or filing
with any third party, other than any governmental authority, if the failure to
provide such item could reasonably be expected to have a Material Adverse
Effect; or (v) accelerate any material obligation under, or give rise to a right
of termination of, any material agreement, permit, license or authorization to
which the Company is a party or by which the Company or its assets are bound.
2.9. CAPITALIZATION. The Company's authorized, issued and outstanding
securities consist solely of the amounts set forth in SECTION 2.9 OF THE COMPANY
DISCLOSURE SCHEDULE. SECTION 2.9 OF THE COMPANY DISCLOSURE SCHEDULE identifies
each of the Company's stockholders, option holders and warrant holders, as well
as the holders of any other outstanding securities of the
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Company, and sets forth the type and amount of the securities owned by each
holder, after giving effect to the transactions contemplated herein. All
outstanding securities of the Company have been issued in compliance with
applicable securities laws and are fully paid, validly issued, and
non-assessable.
2.10. OTHER SECURITIES. The Company has not issued or agreed to issue
any warrants, options or other rights to purchase or acquire any shares of its
capital stock, and there are no outstanding securities convertible into shares
of its capital stock, there are no preemptive rights, rights of first refusal,
or to the Company's knowledge, any put or call rights or obligations,
subscriptions, arrangements or anti-dilution rights with respect to the
issuance, sale or redemption of shares of its capital stock, other than the
amounts set forth in SECTION 2.9 OF THE COMPANY DISCLOSURE SCHEDULE, and the
agreement between the Company and Telantis Venture Partners IV, Inc. ("TVP")
(fka Telantis Capital, Inc.) pursuant to which TVP has the right to purchase
shares of the Common sufficient to maintain a ten percent (10%) ownership in the
Company prior to an initial public offering of the stock of the Company, and the
rights set forth herein or in the Stockholders Agreement (defined herein).
2.11. DUE ISSUANCE. At Closing and when paid for, the Purchased Shares
will be duly and validly issued, fully paid and nonassessable and will have been
offered, issued, sold and delivered in compliance with applicable federal and
state securities laws, and the Purchased Shares shall be transferred to the
Investors free and clear of any and all claims, liens or other encumbrances.
2.12. REGISTRATION RIGHTS. The Company has granted no rights to have
shares of its capital stock registered for sale to the public under the laws of
any jurisdiction, other than the rights set forth in the Registration Rights
Agreement (defined herein).
2.13. VOTING AGREEMENTS AND RESTRICTIONS ON TRANSFER. To the Company's
knowledge there are no agreements relating to the voting of the Company's voting
securities or restrictions on the transfer of the Company's capital stock, other
than this Agreement and the Stockholders Agreement.
2.14. SUBSIDIARIES; INVESTMENTS. The Company does not own or have any
direct or indirect interest in or control over any corporation, partnership,
joint venture or other entity of any kind. The term "control" shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of an entity, whether through the
ownership of voting securities or by contract.
2.15. MERGERS. The Company is not party to any agreement regarding its
acquisition in whole or in part, whether by merger, consolidation, asset sale,
or otherwise, other than this Agreement.
2.16. FINANCIAL STATEMENTS. The Company has provided to the Investors
the Company's: (i) audited balance sheets as at March 31, 1996 and March 31,
1997, and the related statements
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of operations, changes in stockholders' equity, and cash flows for the fiscal
years ended March 31, 1995, March 31, 1996 and March 31, 1997, certified by the
independent certified public accountants of the Company (the "Base Financial
Statements") (the audited balance sheet is referred to as the "Base Balance
Sheet"); (ii) unaudited balance sheet (the "Most Recent Balance Sheet") and
related statements of operations, changes in stockholders' equity, and cash
flows for the period ended February 28, 1998, certified by the Company's Chief
Financial Officer (the "Most Recent Financial Statements"); and (c) a complete
and correct copy of the Report of Independent Accountant addressed to the
Company dated March 30, 1998. The Base Financial Statements and the Most Recent
Financial Statements were prepared in accordance with generally accepted
accounting principles (except that the Most Recent Financial Statements do not
include all of the information and notes required for complete financial
statements) consistently applied during the periods covered thereby and fairly
present in all material respects the financial condition of the Company on the
dates of such statements and the results of its operations and its cash flows
for the periods covered thereby. Nothing has come to the attention of the
Company's management since such respective dates which would indicate that such
financial statements were not true and correct in all material respects as of
the date thereof.
2.17. PROJECTIONS. Projections for the Company's fiscal years ended
1999 and 2000 (the "Projections") have been made available for inspection by the
Investors. The Projections represent management's good faith estimates of the
future performance of the Company based upon assumptions which are set forth
therein and which, in the reasonable judgment of management, were reasonable
when made and continue to be reasonable as of the date hereof; PROVIDED,
HOWEVER, THAT THERE IS NO ASSURANCE THAT THE PROJECTED RESULTS WILL ACTUALLY BE
ACHIEVED. IN THAT REGARD, PROJECTIONS INVOLVE KNOWN AND UNKNOWN RISKS,
UNCERTAINTIES AND OTHER FACTORS WHICH MAY CAUSE THE ACTUAL RESULTS, PERFORMANCE
OR ACHIEVEMENTS OF THE COMPANY, OR INDUSTRY RESULTS, TO BE MATERIALLY DIFFERENT
FROM ANY FUTURE RESULTS, PERFORMANCE, OR ACHIEVEMENTS EXPRESSED OR IMPLIED BY
SUCH FORWARD-LOOKING STATEMENTS. SUCH FACTORS INCLUDE, AMONG OTHERS: GENERAL
ECONOMIC AND BUSINESS CONDITIONS; INDUSTRY CAPACITY; DEMOGRAPHIC CHANGES;
COMPETITION; RAW MATERIAL COSTS AND AVAILABILITY; IMPORT PROTECTION AND
REGULATION; THE LOSS OF ANY SIGNIFICANT CUSTOMERS; CHANGES IN BUSINESS STRATEGY
OR DEVELOPMENT PLANS; QUALITY OF MANAGEMENT; AVAILABILITY, TERMS AND DEPLOYMENT
OF CAPITAL; BUSINESS ABILITIES AND JUDGMENT OF PERSONNEL; AVAILABILITY OF
QUALIFIED PERSONNEL; AND CHANGES IN OR THE FAILURE TO COMPLY WITH GOVERNMENT
REGULATIONS.
2.18. ABSENCE OF UNDISCLOSED LIABILITIES. As of the date of the Most
Recent Balance Sheet: (i) the Company did not have any material liabilities; and
(ii) the Company had no indebtedness, in either case, whether accrued, absolute
or contingent, asserted or unasserted, including without limitation, liabilities
as guarantor or otherwise with respect to obligations of others, or liabilities
for taxes due or then accrued or to become due, or contingent or potential
liabilities relating to activities of the Company or the conduct of its business
prior to the date of the Most Recent Balance Sheet, which were required to be
disclosed in the Most Recent Balance Sheet in accordance with generally accepted
accounting principles, except liabilities stated or adequately reserved against
or disclosed on the Most Recent Balance Sheet or the notes thereto.
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2.19. ABSENCE OF CHANGES. Since the date of the Most Recent Balance
Sheet, except for entering into the Inter-Company Agreements, the Company has
conducted its business only in the ordinary course consistent with past
practice, and to the Company's knowledge there has not been:
(a) any material change in the financial or other condition,
properties, assets, liabilities, business, prospects or operations of
the Company, which change by itself or in conjunction with all other
such changes, whether or not arising in the ordinary course of
business, has had or could reasonably be expected to have a Material
Adverse Effect;
(b) any material contingent liability incurred by the Company
as guarantor or otherwise with respect to the obligations of others or
any cancellation of any debt or claim owing to, or waiver of any
material right of, the Company;
(c) any material mortgage, encumbrance or lien placed on any
of the properties of the Company which remains in existence on the date
hereof or will remain on the Closing Date;
(d) any obligation or liability of any nature, whether
accrued, absolute or contingent, incurred by the Company other than
obligations and liabilities incurred in the ordinary course of business
or incurred as a result of or arising out of the transactions
contemplated by this Agreement;
(e) any purchase, sale or other disposition, or any agreement
or other arrangement for the purchase, sale or other disposition, of
any properties or assets of the Company other than in the ordinary
course of business;
(f) any damage, destruction or loss, whether or not covered by
insurance, which has had or could reasonably expected to have a
Material Adverse Effect;
(g) any declaration, setting aside or payment of any dividend
by the Company, or the making of any other distribution in respect of
the capital stock of the Company, or any direct or indirect redemption,
purchase or other acquisition by the Company of its own capital stock;
(h) any labor trouble or claim of unfair labor practices
involving the Company; any material change in the compensation payable
or to become payable by the Company to any of its officers, employees,
agents or independent contractors; or any bonus payment or arrangement
made to or with any of such officers, employees, agents or independent
contractors, other than normal merit increases in accordance with its
usual practices;
(i) any material change in the officers or management of the
Company;
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(j) any payment or discharge of any lien or liability of the
Company which was not shown on the Base Balance Sheet or incurred in
the ordinary course of business thereafter;
(k) any obligation or liability incurred by the Company to any
of its officers, directors, stockholders or employees, or any loans or
advances made by the Company to any of its officers, directors,
stockholders or employees, except normal compensation and expense
allowances payable to officers or employees;
(l) any material change in accounting methods or practices,
credit practices or collection policies of the Company;
(m) any other material transaction entered into by the Company
other than transactions in the ordinary course of business;
(n) any event or condition of any nature, which, either
individually or in the aggregate, has had or could reasonably be
expected to have a Material Adverse Effect; or
(o) any agreement or understanding whether in writing or
otherwise, for the Company to take any of the actions specified in
paragraphs (a) through (m) of this Section 2.19.
2.20. ACCOUNTS RECEIVABLE. Except to the extent reserved against in the
Most Recent Balance Sheet, all of the accounts receivable of the Company are
valid and enforceable claims, the Company has received no notice that such
claims are subject to set-off or counterclaim, and such claims, to the knowledge
of the Company, are collectable in the normal course of business, after
deducting the allowance for doubtful accounts stated in the Most Recent Balance
Sheet and adjusted since the date thereof in accordance with generally accepted
accounting principles consistently applied.
2.21. TAX MATTERS. The Company has filed all federal, state, local and
foreign tax returns required to be filed by it through the date hereof, and has
paid or caused to be paid all federal, state, local, foreign and other taxes,
including without limitation income taxes, estimated taxes, excise taxes, sales
taxes, use taxes, gross receipts taxes, franchise taxes, employment and
payroll-related taxes, withholding taxes, stamp taxes, transfer taxes and
property taxes, whether or not measured in whole or in part by net income
(collectively, "Taxes"), required to be paid by the Company through the date
hereof, except Taxes which have been disputed or have not yet accrued or
otherwise become due and payable, for which adequate provision has been made in
the pertinent financial statements.
2.22. TITLE TO PROPERTIES. The Company has good and marketable title to
all of its properties and assets, free of all mortgages, pledges, liens,
security interests, encumbrances, and other charges. There is no material
tangible or intangible property, including, without limitation,
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trademarks, service marks, styles, trade names, copyrights, licenses, patents,
and trade secrets (including applications, certificates and registrations for or
of any of the foregoing), used by the Company in its business as presently
conducted by it which is not owned, leased or licensed by the Company. The
Company's property is sufficient for the conduct of the Company's business as
presently conducted. All material contracts, agreements, leases and instruments
to which the Company is a party or by which the Company is obligated are valid
and are in full force and effect and constitute legal, valid and binding
obligations of the Company, and, are enforceable in accordance with their
respective terms, and copies of all such agreements have been provided to
Xxxxxxx & Xxxxxxx LLP, special counsel for the Investors. The Company has no
knowledge of any threat to terminate or modify any such agreements. Neither the
Company nor, to the knowledge of the Company, any other party to any material
contract, agreement or instrument of the Company is in default in complying with
any provisions thereof. There is no loan, lease, agreement or other continuing
transaction between the Company and any Related Party (as defined in the
Stockholders agreement, which is defined herein). To the Company's knowledge,
neither the Company's business nor products or services as presently conducted
or sold infringe any Intellectual Property (defined herein) of any third
parties, and there are no claims to that effect pending or threatened against
the Company.
2.23. LITIGATION. There is no litigation or governmental or
administrative proceeding or investigation pending or, to the Company's
knowledge, threatened against the Company.
2.24. INVESTMENT BANKING; BROKERAGE FEES. The Company has not incurred
or become liable for any broker's or finder's fee, banking fees or similar
compensation, relating to or in connection with the transactions contemplated
hereby.
2.25 FRANCHISES, LICENSES, TRADEMARKS, PATENTS AND OTHER RIGHTS.
(a) The Company owns or has the right to use all (i)
franchises, permits, licenses and other similar authority, (ii)
patents, patent applications, patent rights, service marks, trademarks,
trademark applications, trademark rights, trade names, trade name
rights and copyrights (whether registered or not), and (iii) know-how,
technology and trade secrets which have been used in the conduct of the
Company's business, or are necessary for the conduct of the Company's
business as now conducted or as presently planned to be conducted (the
"Intellectual Property"). The Intellectual Property is sufficient for
the conduct of the Company's business as presently conducted.
(b) The Company has all franchises, permits, licenses and
other similar authority, necessary for the conduct of its business as
now being conducted by it and has no reason to believe it will be
unable to obtain any similar authority necessary for the conduct of its
business as presently planned to be conducted, and it is not in
violation, nor will the transactions contemplated by this Agreement
cause a violation of the terms or provisions of any such franchise,
permit, license or other similar authority.
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2.26 ISSUANCE TAXES. All taxes imposed by any state or other
jurisdiction in connection with the issuance, sale and delivery of the Purchased
Shares shall have been fully paid, and all laws imposing such taxes shall have
been fully complied with, prior to each Closing Date.
2.27 OFFERING. Within the past six (6) months, the Company has not,
either directly or through any agent, offered any of the Purchased Shares or any
security or securities similar to the Purchased Shares for sale to, or solicited
any offers to buy the Purchased Shares or any part thereof or any such similar
security or securities from, or otherwise approached or negotiated in respect
thereof with, any party or parties other than the Purchasers or institutional or
other sophisticated investors, each of which was offered all or a portion of the
Shares at private sale for investment. Subject in part to the truth and accuracy
of the Purchasers' representations set forth in this Agreement, the offer, sale
and issuance of the Shares as contemplated by this Agreement are exempt from the
registration requirements of the Securities Act, and all applicable state
securities laws, and neither the Company, Telxon nor anyone acting on behalf of
either of them will take any action hereafter that would cause the loss of such
exemption.
2.28 EMPLOYEES.
(a) No employee of the Company is, or is now expected to be,
in violation of any term of any employment contract, patent disclosure
agreement, non-competition agreement, or any other contract or
agreement with any prior employer or any other person, corporation, or
other entity or any restrictive covenant in such an agreement, or any
obligation imposed by common law or otherwise, relating to the right of
any such employee to be employed by the Company or companies similarly
situated because of the nature of the business conducted or to be
conducted by the Company, or companies similarly situated or relating
to the use of trade secrets or proprietary information of others, and
the continued employment of the Company's employees and/or does not
subject the Company or any Purchaser to any material liability for any
such violation.
(b) Each of the Company's present or former employees who has
had access to proprietary information of the Company has executed a
proprietary information and inventions agreement assigning inventions,
works for hire and work product to the Company. To the best of the
Company's knowledge and belief, no employee or former employee of the
Company is, or to the best of the Company's knowledge and belief is now
expected to be, in violation of the terms of the aforesaid agreement or
of any other obligation relating to the use of confidential or
proprietary information of the Company, except for such violations as
could not reasonably be expected to have a Material Adverse Effect.
Each of such Proprietary Information Agreements remains in full force
and effect.
(c) To the best knowledge of the Company, no officer or key
employee of the Company has any present intent of terminating such
officer's or key employee's employment with the Company.
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(d) The Company is in substantial compliance with all
applicable laws regarding employment, wages, hours, equal opportunity,
collective bargaining and payment of Social Security and other taxes.
The Company is in compliance with all applicable foreign, federal,
state and local laws and regulations regarding occupational safety and
health standards and has received no complaints from any foreign,
federal, state or local agency or regulatory body alleging violations
of any such laws and regulations, except where non-compliance, or such
violation, could not reasonably be expected to have a Material Adverse
Effect.
(e) The Company has not experienced, nor does it know or have
reasonable grounds to know of any basis for, any strike, labor troubles
or strife, work stoppages, slow downs, or other interference with or
impairment of its business. The Company has not experienced, nor does
it know or have reasonable grounds to know of, any union or collective
bargaining organization efforts or negotiations, or requests for
negotiations, for any representation or any labor contract relating to
any employees of the Company.
2.29 BUSINESS OF THE COMPANY. The Company has no knowledge or belief
that (i) there is pending or threatened any claim or litigation against or
affecting the Company contesting its right to manufacture, sell or use any
product or service presently manufactured, sold or used or presently planned to
be manufactured, sold or used by the Company, (ii) there exists, or there is
pending or planned, any statute, rule, law, regulation, standard or code which
could not reasonably be expected to have a Material Adverse Effect or could
reasonably be expected to have a Material Adverse Effect.
2.30 USE OF PROCEEDS. The Company will use the proceeds of the offering
of the Company Shares for working capital purposes in the manner set forth in
the Company Disclosure Schedule, and for the costs and expenses of the
transactions contemplated hereby. The Company presently expects that it will
obtain a commercial credit facility. If obtained, the credit facility will be
utilized to repay any then unpaid balance of the funding heretofore advanced by
Telxon to the Company (the "Inter-Company Debt"). In the event that the
Company's credit facility is not established by May 18, 1998, then Telxon may
set off up to twenty five percent (25%) of the amounts payable during any month
by Telxon to the Company under the Inter-Company Agreements against the
Inter-Company Debt, on mutually agreeable terms, including reasonable
forbearances, until such time as the Inter-Company Debt is repaid.
2.31 APPLICABILITY OF, AND COMPLIANCE WITH, OTHER LAWS.
(a) With respect to pension plans, defined benefit plans or
defined contribution plans which are subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), in which employees
of the Company participate, the Company is in compliance with the
applicable provisions of ERISA. The Company has not incurred any
unremedied accumulated funding deficiency within the meaning of ERISA
or any unsatisfied liability to the Pension Benefit Guaranty
Corporation established under ERISA
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in connection with any employee pension plan established or maintained
by the Company under the jurisdiction of ERISA. No Reportable Event or
Prohibited Transaction (as defined in Section 4043 of ERISA) has
occurred with respect to any plan administered by or on behalf of the
Company.
(b) The Company's employment practices and policies are in
full compliance with (i) all applicable laws of the United States and
each applicable jurisdiction relating to equal employment opportunity,
and any rules, regulations, administrative orders and Executive Orders
relating thereto; and (ii) the applicable terms, relating to equal
opportunity, of any contract, agreement or grant the Company has with,
from or relating (by way of subcontract or otherwise) to any other
contract, agreement or grant of, any federal or state governmental
unit, except where non-compliance could not reasonably be expected to
have a Material Adverse Effect. To the Company's knowledge, the Company
has not been the subject of any charge of unfair labor practices,
employment discrimination made against it by the National Labor
Relations Board, the United States Equal Employment Opportunity
Commission or any other governmental unit, or is presently subject to
any formal or informal proceedings before, or investigations by, such
Commission or governmental unit. To the Company's knowledge, neither
the Company nor any employees of the Company, are presently under
investigation by any commission or governmental agency for purposes of
security clearance or otherwise.
(c) Neither the Company nor any property owned or occupied by
the Company is in violation of any Federal or State Environmental Law
of any sort or in violation of any Federal or State "OSHA" law,
so-called, except where such violations could not reasonably be
expected to have a Material Adverse Effect.
2.32 CONDITION OF PROPERTIES. The facilities, machinery, equipment,
fixtures, vehicles and other properties which are used by the Company in its
business as presently conducted, are in good operating condition and repair, are
reasonably fit and usable for the purposes for which they are being used, are
adequate and sufficient for the Company's businesses and conform with all
applicable ordinances, regulations and laws, except where such failure to
conform could not reasonably be expected to have a Material Adverse Effect.
2.33 INSURANCE COVERAGE. The Company has heretofore been insured under
Telxon's insurance policies. The Company has no reason to believe that it will
be unable to obtain one or more policies of insurance issued by insurers of
recognized responsibility, to insure the Company, and its properties and
business against such losses and risks, and in such amounts, as are customary in
the case of corporations of established reputation engaged in the same or
similar business and similarly situated.
2.34 EXCEPTIONS AND QUALIFICATIONS. The exceptions and qualifications
to the representations and warranties of the Company in this Article II which
are based upon such
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exceptions and qualifications not being "material" or being "in all material
respects," or not having a "Material Adverse Effect" will not, in the aggregate,
have a Material Adverse Effect.
III. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
3.1. MAKING OF REPRESENTATIONS AND WARRANTIES. Each Investor, as to
itself, makes to the Company the representations and warranties set forth in
this Article III. Each such representation and warranty is subject to and
qualified by the other provisions of this Agreement, and the exceptions set
forth in each Investor's disclosure schedule attached hereto (the "Investor
Disclosure Schedule").
3.2. ORGANIZATION. The Investor is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization, and in each
jurisdiction in which the failure to be so qualified would have a material
adverse effect on the Investor. Investor has all requisite power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby.
3.3. POWER. The Investor has all required power and authority to enter
into and perform this Agreement and the agreements contemplated hereby to which
it is a party and to carry out the transactions contemplated hereby and thereby,
including the purchase of the Purchased Shares. To its knowledge, the Investor
is not in violation of any material term of: (i) its organizational instruments;
(ii) its Bylaws or similar governing regulations or (iii) any agreement,
instrument, judgment, decree, order, statute, rule or government regulation
applicable to the Investor or to which the Investor is a party, the violation of
which would have a material adverse effect on the Investors.
3.4. ENFORCEABLE AGREEMENT. This Agreement and all other documents
executed by the Investor pursuant hereto are valid and binding obligations of
the Investor, enforceable in accordance with their terms, except as limited by
the laws of general application relating to bankruptcy, insolvency and the
relief of debtors and rules and laws governing specific performance, injunctive
relief and other equitable remedies.
3.5. AUTHORIZATION. The execution, delivery and performance of this
Agreement, all agreements, documents and instruments contemplated hereby and the
purchase of the Purchased Shares have been duly authorized by all necessary
action of the Investor.
3.6. INVESTMENT EXPERIENCE; SECURITIES LAWS. The Investor 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 Purchased Shares
contemplated by this Agreement and making an informed investment decision with
respect thereto. The Investor can bear the risk of its investment in the
Purchased Shares indefinitely and can bear a total loss of such investment
without materially impairing its financial condition. The Investor is an
"accredited investor" as such term is defined in Rule 501 under the Securities
Act of 1933, as amended (the "Securities Act"). The Investor
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understands, agrees and acknowledges that the Purchased Shares have not been
registered under the Securities Act or under the "blue sky" laws of any
jurisdiction and, subject to the Registration Rights Agreement, that the Company
has no intention of registering the Purchased Shares. The Company is issuing the
Purchased Shares in reliance upon exemptions from registration based on, among
other things, the representations of such Investor contained in this Article
III. Investor further understands, acknowledges and agrees that unless and until
the Purchased Shares are registered by the Company, their resale is restricted
by the Securities Act and blue sky laws, and by restrictions in the Stockholders
Agreement. Investor's address as set forth in EXHIBIT A is the address of
Investor's principal place of business.
3.7. OPPORTUNITY TO ASK QUESTIONS. The Investor has made a due
diligence investigation of the Company, including an analysis of the Company's
business, assets, financial data and other material information, and it has read
and understands the risk factors disclosed by the Company in EXHIBIT D. The
attachment of EXHIBIT D to this Agreement, and the Investor's acknowledgment
that it has read and understands the same, shall not in any way limit the
Company's representations and warranties made in Article II, and EXHIBIT D does
not qualify or limit such representations and warranties. To its satisfaction,
the Investor has had an opportunity to discuss the Company's business,
management and financial affairs, the transactions contemplated hereunder, with
directors, officers and management of the Company and has had the opportunity to
review the Company's operations, facilities and the Inter-Company Agreements.
3.8. INVESTMENT INTENT. The Investor is acquiring the Purchased Shares
for its own account, for investment, and not with a present view to, or for
resale in connection with, any "distribution" thereof within the meaning of the
Securities Act. The Investor was not formed or organized for the purpose of
acquiring the Securities.
3.9. SHARE CERTIFICATE LEGENDS. The Investor understands that transfer
of the Purchased Shares is restricted, and each certificate representing the
Purchased Shares will bear the following restrictive legends or ones
substantially similar thereto, to provide third parties with notice of these
restrictions:
OWNERSHIP, ENCUMBRANCE, PLEDGE, ASSIGNMENT, TRANSFER, OR OTHER
DISPOSITION OF THE SHARES EVIDENCED BY THIS CERTIFICATE, AND
ANY SHARES ISSUED IN LIEU THEREOF, ARE SUBJECT TO RESTRICTIONS
CONTAINED IN A STOCKHOLDERS AGREEMENT DATED AND EFFECTIVE AS
OF MARCH ___, 1998, BY AND AMONG THE CORPORATION AND ITS
STOCKHOLDERS A COPY OF WHICH IS ON FILE IN THE OFFICE OF THE
SECRETARY OF THE CORPORATION. A COPY OF THE STOCKHOLDERS
AGREEMENT AND THE CORPORATION'S BY-LAWS WILL BE MAILED BY THE
CORPORATION TO ANY STOCKHOLDER WITHOUT
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CHARGE WITHIN FIVE (5) DAYS AFTER WRITTEN
REQUEST THEREFOR.
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR APPLICABLE STATE SECURITIES LAWS ("STATE LAWS") AND
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT REGISTERING THE SHARES UNDER
THE ACT AND STATE LAWS OR (ii) A TRANSACTION PERMITTED BY RULE
144 OR RULE 145 UNDER THE ACT OR EQUIVALENT STATE LAWS FOR
WHICH THE ISSUER HAS RECEIVED REASONABLY SATISFACTORY EVIDENCE
OF COMPLIANCE WITH THE PROVISIONS OF SUCH APPLICABLE RULE OR
(iii) AN OPINION OF COUNSEL SATISFACTORY TO ISSUER THAT SUCH
SHARES ARE EXEMPT FROM THE REGISTRATION PROVISIONS OF THE ACT
AND STATE LAWS OR (iv) A NO-ACTION LETTER FROM THE STAFF OF
THE SECURITIES AND EXCHANGE COMMISSION AND THE APPLICABLE
STATE DIVISIONS OF SECURITIES THAT REGISTRATION IS NOT
REQUIRED UNDER THE ACT OR STATE LAWS."
3.10. INVESTMENT BANKING; BROKERAGE FEES. No Investor has incurred or
become liable for any broker's or finder's fee, banking fees or similar
compensation relating to or in connection with the transactions contemplated
hereby.
IV. CONDITIONS.
4.1. CONDITIONS TO THE OBLIGATIONS OF THE INVESTORS. The obligation of
each Investor to consummate the transactions contemplated by this Agreement is
subject to the fulfillment, prior to or at the Closing, of the following
conditions precedent:
(a) REPRESENTATIONS; WARRANTIES; COVENANTS. Each of the
representations and warranties of the Company made in Article II shall
be true and correct in all respects when made and shall be true and
correct in all respects at the Closing as if made on the Closing Date,
and the Company shall, on or before the Closing Date, have performed
and satisfied all of its covenants and agreements set forth herein
which by the terms hereof are to be performed and satisfied on or
before the Closing Date.
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(b) AUTHORIZATION. The Board of Directors and the stockholders
of the Company shall have duly adopted resolutions authorizing the
Company to consummate the transactions contemplated hereby in
accordance with the terms hereof.
(c) NO ACTIONS OR PROCEEDINGS. No action or proceeding by or
before any court, administrative body or governmental agency shall have
been instituted or threatened which seeks to enjoin, restrain or
prohibit, or might result in damages in respect of, this Agreement or
the consummation of the transactions contemplated by this Agreement,
and no law or regulation shall be in effect and no court order shall
have been entered in any action or proceeding instituted by any party
which enjoins, restrains or prohibits this Agreement or the
consummation of the transactions contemplated by this Agreement.
(d) APPROVALS AND CONSENTS. The Company shall have made all
filings with and notifications of governmental authorities, regulatory
agencies and other entities then required to be made by them in
connection with the execution and delivery of this Agreement and the
performance by it of the transactions contemplated hereby.
(e) MATERIAL ADVERSE CHANGES. There shall not have been any
change or series of changes that have a Material Adverse Effect.
(f) INTER-COMPANY AGREEMENTS. The Inter-Company Agreements
shall be in full force and effect without amendment, and no default
shall exist or would result from consummation of the transactions
contemplated herein.
(g) STOCKHOLDERS AGREEMENT. The Company, the Investors and the
other stockholders of the Company shall have entered into a
Stockholders Agreement in substantially the form attached hereto as
EXHIBIT E (the "Stockholders Agreement").
(h) REGISTRATION RIGHTS AGREEMENT. The Company, the Investors
and the stockholders of the Company shall have entered into a
Registration Rights Agreement in substantially the form attached hereto
as EXHIBIT F (the "Registration Rights Agreement").
(i) BY-LAW AMENDMENTS. The By-Laws shall be amended to provide
for the rights and provisions set forth in the Stockholders Agreement.
(j) FULL EQUITY FUNDING. Each other Investor shall have paid
in full for the Purchased Shares set forth opposite to such Investor's
name on EXHIBIT A.
(k) DELIVERIES AND EXPENSES. The Company shall have made all
deliveries to the Investors required under Section 5.1, and the Company
shall have paid the reasonable attorneys fees of Axiom Venture Partners
II Limited Partnership, an Investor, incurred on behalf of all
Investors.
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4.2. CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligations of the
Company to consummate the transactions contemplated by this Agreement are
subject to the fulfillment, prior to or at the Closing, of the following
conditions precedent:
(a) REPRESENTATIONS; WARRANTIES; COVENANTS. Each of the
representations and warranties of each Investor made in Article III
shall be true and correct in all material respects at the Closing as if
made on the Closing Date, and each Investor shall, on or before the
Closing Date, have performed and satisfied all of its covenants and
agreements set forth herein which by the terms hereof are to be
performed and satisfied on or before the Closing Date.
(b) NO ACTIONS OR PROCEEDINGS. No action or proceeding by or
before any court, administrative body or governmental agency shall have
been instituted or threatened which seeks to enjoin, restrain or
prohibit, or might result in damages in respect of, this Agreement or
the consummation of the transactions contemplated by this Agreement,
and no law or regulation shall be in effect and no court order shall
have been entered in any action or proceeding instituted by any party
which enjoins, restrains or prohibits this Agreement or the
consummation of the transactions contemplated by this Agreement.
(c) STOCKHOLDERS AGREEMENT. The Company, the Investors and the
other stockholders of the Company shall have entered into the
Stockholders Agreement.
(d) REGISTRATION RIGHTS AGREEMENT. The Company, the Investors
and the stockholders of the Company shall have entered into the
Registration Rights Agreement.
(e) FULL EQUITY FUNDING. Each of the Investors shall have paid
in full for Purchased Shares set forth opposite such Investor's name on
EXHIBIT A.
V. CLOSING DELIVERIES.
5.1 COMPANY. At or before Closing, the Company shall have duly executed
and delivered, or caused the delivery, to each Investor all items required by
this Agreement, including, without limitation:
(a) Certificates evidencing the Purchased Shares and the
Warrants;
(b) Certified copies of resolutions of the Board of Directors
of the Company authorizing the execution and delivery and performance
of this Agreement, the Stockholders Agreement, the Registration Rights
Agreement, the issuance of the Purchased Shares and the other
agreements and instruments contemplated herein;
(c) Certificates of recent date issued by (i) the Secretary of
State of the State of Delaware certifying that the Company is in good
standing; and (ii) the Secretary of State
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of the State of Ohio certifying the Company has qualified to do
business as a foreign corporation and is in good standing in Ohio;
(d) A certificate of the Secretary or an Assistant Secretary
of the Company certifying the names of the officers of the Company
authorized to execute this Agreement, the certificates for the
Purchased Shares and the other documents, instruments or certificates
to be delivered pursuant to this Agreement by the Company.
(e) An opinion of counsel for the Company dated the Closing
Date, in the form attached hereto as EXHIBIT G.
(f) A certificate of an officer of the Company in the form
attached as EXHIBIT H, certifying that certain conditions to the
Investors' obligation to consummate the transactions contemplated
herein have been satisfied.
5.2 INVESTORS. At or before Closing, each Investor shall have paid the
purchase price set forth in EXHIBIT A opposite its name, to the Company in
immediately available funds, by wire transfer pursuant to the wire instructions
set forth in EXHIBIT C.
VI. SURVIVAL; INDEMNIFICATION.
6.1. SURVIVAL. All representations and warranties made herein and in
any certificate delivered pursuant hereto, are made as of the Closing Date, and
shall survive the Closing for a period of two (2) years after the Closing Date.
6.2. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify,
defend and hold harmless each of the Investors, their affiliates and their
respective officers, directors, partners, members, employees and agents and each
person who controls any of them within the meaning of Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended
(including any successor provision, the "Exchange Act") (individually, an
"Investor Indemnified Party" and collectively the "Investor Indemnified
Parties") from and against and in respect of all losses, liabilities,
obligations, damages, deficiencies, actions, suits, proceedings, demands,
assessments, orders, judgments, fines, penalties, costs and expenses (the
Company shall be responsible for reasonable fees, disbursements and expenses of
an attorney, accountant or consultant: (i) acting for the Investor Indemnified
Parties as a group; and (ii) acting for an Indemnified Party that has a material
conflict of interest with other Indemnified Parties which prevents its inclusion
in such group representation), of any kind or nature whatsoever (whether or not
arising out of third-party claims and including all amounts paid in
investigation, defense or settlement of the foregoing) sustained, suffered or
incurred by or made against any Investor Indemnified Party (an "Investor Loss"
or "Investor Losses") arising out of, based upon or in connection with any
breach by the Company of any of its representations, warranties or covenants
under this Agreement or by reason of any claim, action or proceeding asserted or
instituted arising out of any matter or thing covered by any such
representations or warranties ("Investor
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Indemnifiable Claims"). Indemnification under this Section 6.2 shall be
cumulative with other rights and remedies an Investor may have, but no
Indemnified Party shall be entitled to more than a single recovery for the same
damage, regardless of the theory under which such recovery is made. Any action
for indemnification for Investor Losses arising from Investor Indemnifiable
Claims must be commenced within the two (2) year period commencing on the
Closing Date, and any statute of limitations applicable thereto is hereby
superseded.
6.3. NOTICE; DEFENSE OF CLAIMS. Promptly after receipt by an
indemnified party of notice of any claim, liability or expense to which the
indemnification obligations set forth in Section 6.2 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 and shall specify the
provision or provisions of this Agreement under which the liability or
obligation is asserted. If within twenty (20) days after receiving such notice
the indemnifying party gives written notice to the indemnified party stating
that (a) it would be liable under the provisions hereof for indemnity in the
amount of such claim if such claim were successful and (b) 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 apprized 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, at the indemnifying party's
expense, shall make available all information and assistance that the
indemnifying party may reasonably request and shall, at the indemnifying party's
expense, cooperate with the indemnifying party in any defense undertaken
pursuant to this Section 6.3, with any out of pocket expense incurred by the
indemnified party being born by the indemnifying party. 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, that 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 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.
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VII. MISCELLANEOUS.
7.1. GOVERNING LAW; JURISDICTION. This Agreement shall be construed
under and governed by the laws of the State of Ohio, without regard to conflict
or choice of laws, statutes, regulations, rules or principles. Any action
relating to the execution or performance of this Agreement shall be brought in
the courts, state or federal, sitting in Summit County, Ohio, and each party
hereto consents to the jurisdiction and venue of such courts, and agrees not to
contest venue on the grounds of forum non conveniens or otherwise.
7.2. NOTICES. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given upon receipt, or if delivered or sent by facsimile transmission, upon
confirmation of transmission, or if sent by overnight courier, the second day
after deposit, as follows:
TO THE INVESTORS: To the respective addresses on
EXHIBIT A attached hereto
TO THE COMPANY: Aironet Wireless Communications, Inc.
at the address set forth at the
beginning of this Agreement.
Attn: President
Fax Number: 000-000-0000
with a copy to: Xxxxxxx Xxxxx Xxxxxx LLP
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx/Xxx X. Xxxxxx
Fax Number: 000-000-0000
or to such other address of which any party may notify the other parties
provided in accordance with this Section 7.2.
7.3. PRIOR AGREEMENTS SUPERSEDED. This Agreement supersedes all prior
and contemporaneous understandings and agreements, written or oral, between or
among the parties relating to the subject matter hereof.
7.4. ASSIGNABILITY. Neither this Agreement nor any right or obligation
hereunder may be assigned or delegated (i) by the Company, or (ii) by an
Investor to a direct competitor of the Company, or a direct competitor of Telxon
so long as Telxon owns twenty percent (20%) or more of the Company's issued and
outstanding capital stock (either being a "Competitor"), and any such assignment
or delegation shall be void and of no effect. The merger, consolidation, asset
sale, change of control, or any other reorganization of an Investor with or into
a Competitor, or of a Competitor with or into a party, shall be deemed an
assignment under this Section 7.4. Subject to the foregoing, this Agreement
shall be binding upon and enforceable by, and shall inure to the
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benefit of, the parties hereto and their respective successors and assigns.
Nothing in this Agreement is intended to give any person not named herein the
benefit of any legal or equitable right, remedy or claim under this Agreement,
except as expressly provided herein.
7.5. FEES AND EXPENSES. Except as expressly provided for in Section
4.1(k) of this Agreement, each party shall bear all of its fees and expenses
incurred in connection with or relating to or arising out of the negotiation and
preparation of this Agreement and the consummation of the transactions
contemplated hereby.
7.6. PUBLICITY AND DISCLOSURES. None of the parties hereto nor any of
their respective stockholders, subsidiaries, affiliates, officers, directors or
employees shall issue or cause the publication of any press release or other
announcement with respect to this Agreement or the other transactions
contemplated hereby without the prior written consent of the other parties
hereto, which consent shall not be unreasonably withheld or delayed, except to
the extent disclosure is required by any applicable law or regulation or by any
court or authorized administrative or governmental agency, and except that the
provisions of this Section 7.6 shall not prohibit any Investor from providing to
its partners or equity owners customary information with respect to the Company
and the Investor's investment in the Company.
7.7 CONFIDENTIALITY. All documents delivered by or for the Company
and/or Telxon to an Investor in connection with its investigation of the Company
and the transaction contemplated herein are privileged and confidential
information of the Company and/or Telxon ("Confidential Information"). Investors
shall not disseminate or disclose any Confidential Information, and shall use
the same degree of care to protect the Confidential Information in its
possession or control as it uses to protect its own confidential information,
but in no case less than reasonable care. Neither an Investor nor its officers,
directors, employees, attorneys, accountants, professional advisors or other
representatives may use or copy any Confidential Information for any purpose
other than for the purpose of evaluating the transactions contemplated herein.
Neither an Investor nor any of the above-described persons have any rights in
the Confidential Information, and shall not disclose, give, sell, license,
lease, or otherwise transfer or make available the Confidential Information to
any third person, organization or entity. In the event that the Closing does not
take place, all Confidential Information furnished to or for an Investor, and
any copies thereof made, and documents, analysis and other writings prepared
therefrom, by or for an Investor or any of the above-described persons shall be
returned to the Company, or destroyed at the Company's option, immediately after
receipt by the Investor of the Company's request and direction to do so.
7.8. CAPTIONS. The captions in this Agreement are for convenience only
and shall not affect the construction or interpretation of any term or provision
hereof.
7.9. NUMBER AND GENDER. The use in this Agreement of singular, plural,
masculine, feminine and neuter pronouns, shall include the others as the context
may require.
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7.10. EXECUTION IN COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same document. An executed
faxed counterpart of this Agreement shall be binding on the parties and for
evidentiary purposes, shall be deemed to be an original.
7.11. SEVERABILITY. In case any of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had been limited or modified
(consistent with its general intent) to the extent necessary to make it valid,
legal and enforceable, or if it shall not be possible to so limit or modify such
invalid, illegal or unenforceable provision or part of a provision, this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision or part of a provision had never been contained in this Agreement, so
long as to do so would not materially alter the rights or obligations of the
parties considered as a whole.
7.12. AMENDMENTS; WAIVERS. Any waiver by a party of any provision,
covenant or condition intended for its benefit must be in writing and executed
by that party; provided, however, that any waiver by the Investors holding fifty
percent (50%) or more of the Purchased Shares shall be deemed to be a waiver by
all Investors, provided that if a waiver treats any Investor differently from
other Investors, it must be consented to by such Investor. No delay on the part
of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party of any such
right, power or privilege preclude any further exercise thereof or the exercise
of any other such right, power or privilege. This Agreement may not be amended
as to any Investor except in writing executed by the Company and by the Investor
affected by such amendment; provided, however, that any amendment which has been
agreed to by the Investors holding fifty percent (50%) or more of the Purchased
Shares shall be deemed to have been agreed to by all Investors, unless such
amendment treats any Investor differently from other Investors.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first set forth above.
COMPANY: AIRONET WIRELESS COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx, Treasurer
INVESTORS, INDIVIDUALS: /s/ Xxxxx X. Xxxx
------------------------------------------
XXXXX X. XXXX
23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
INVESTORS, ENTITIES: AXIOM VENTURE PARTNERS II LIMITED
PARTNERSHIP
By: Axiom Venture Associates II Limited
Liability Company, its General Partner
By: /s/ Xxxxxx X. XxXxx
--------------------------------------
Its:
--------------------------------------
XXXXXXXXX & XXXXX
By:
--------------------------------------
Its:
--------------------------------------
TELANTIS VENTURE PARTNERS V, INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Xxxxxxx X. Xxxx, Treasurer
W, A & H INVESTMENTS LLC
By: Xxxxxxx, Xxxxxx & Xxxxxxxxx Group, L.L.C.,
its managing member
By: /s/ Xxx X. Xxxxxxx
--------------------------------------
Xxx X. Xxxxxxx, CEO/Managing Director
XxXXXXXX & COMPANY SECURITIES, INC.
By:
--------------------------------------
Its:
--------------------------------------
CLARION CAPITAL CORPORATION
By: /s/ Xxxx Xxxxx
--------------------------------------
Its: Chairman
--------------------------------------
