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Exhibit 10.14.2
STOCKHOLDERS AGREEMENT
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THIS STOCKHOLDERS AGREEMENT (this "Agreement"), is made and effective
as of March 31, 1998, by and among Aironet Wireless Communications, Inc., a
Delaware corporation (the "Corporation"), and each of the undersigned (together
with any person, partnership, association, trust, corporation, limited liability
company, or other entity acquiring any Shares (defined herein) in accordance
with the terms and conditions of this Agreement or otherwise, the
"Stockholders").
BACKGROUND
WHEREAS, on August 25, 1993, the Certificate of Incorporation of the
Corporation was filed by the Secretary of State for the State of Delaware (as
amended to date of this Agreement, the "Certificate");
WHEREAS, under the Certificate the authorized capital stock of the
Corporation consists solely of fifteen million (15,000,000) shares of Common
Stock, $.01 par value (the "Shares");
WHEREAS, as of the date hereof, the issued and outstanding Shares are
owned of record by the persons and in the amounts set forth in EXHIBIT A to this
Agreement; and
WHEREAS, this Agreement is a condition to the transactions contemplated
under the Subscription Agreement dated March 31, 1998, by and among the
Corporation and certain of the Stockholders.
AGREEMENT
NOW, THEREFORE, in consideration of these premises and the agreements
made herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally and equitably bound, agree as follows:
1. BOARD OF DIRECTORS.
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(a) GENERAL. The Corporation shall have a Board of Directors comprised
of five (5) directors. Subject to applicable law governing the responsibilities
and liabilities of directors, which shall in any event take precedence, the
Board's power and authority shall be restricted such that it may take no action
which conflicts with the terms hereof or which is reserved to the Stockholders
hereunder or under applicable law. Subject to Section 1(b), each Stockholder
agrees that the Directors of the Corporation shall be the following persons (and
each Stockholder agrees to vote its Shares to effectuate the election of such
Directors) until their successors are designated in accordance with this Section
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Two Telxon Corporation ("Telxon") Inside
Designees, one of whom must be Telxon's Chief
Executive Officer, and
who on the date hereof are Xxxxx X. Brick and Xxxxxxx X. Xxxxx
One Outside Director,
who shall be designated by Telxon,
who on the date hereof is Xxxxx X. Xxxxxxxx
One Investor (defined herein) Designee,
who on the date hereof is Xxxxxx X. XxXxx
and
The Chief Executive Officer of the Corporation,
who on the date hereof is Xxxxx X. Xxxxxx
In addition to the Investor (defined herein) designated Director, the Investors
as a group shall be entitled to designate a single observer (the "Investor
Observer") who shall not be a Director but shall receive all notices which
Directors are entitled to receive and shall be entitled to attend all, but not
to participate in, meetings of the Directors.
(b) DESIGNATION. For the purpose of the foregoing:
(i) the Telxon inside designees and the outside Director shall
be named by Telxon in its sole discretion so long as Telxon then owns
at least fifty percent (50%) of the then issued and outstanding Shares;
the Telxon inside designees, but not the outside Director, shall be
named by Telxon in its sole discretion so long as Telxon then owns at
least twenty percent (20%), but less than fifty percent (50%), of the
then issued and outstanding Shares; and a single Telxon inside designee
shall be named by Telxon in its sole discretion so long as Telxon then
owns at least five percent (5%), but less than twenty percent (20%) of
the then issued and outstanding Shares;
(ii) Following a Hostile Change in Control at any time, and
following any Change in Control occurring after April 30, 2001, the
directors which Telxon is then entitled to designate under Section
1(b)(i) shall thereafter be made by a majority in interest of Axiom
Venture Partners II Limited Partnership ("Axiom"), Xxxxxxxxx & Xxxxx,
Telantis Venture Partners V, Inc. W, A & H Investments LLC, XxXxxxxx &
Company Securities, Inc., Xxxxx X. Xxxx and Clarion Capital
Corporation, who acquired Shares pursuant to the Subscription Agreement
of even date and for so long as any such person or entity is then a
Stockholder (the "Investors"), provided that the Investors shall then,
and for so long as they thereafter continue to, own an aggregate of at
least five (5%) of the then issued and outstanding Shares.
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(A) A "Change in Control" is deemed to have occurred
upon (i) any Person is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of
1934 (as amended, the "Exchange Act")), directly or
indirectly, of fifteen percent (15%) or more of the combined
voting power of Telxon's Voting Securities, or (ii) the
holders of Telxon's securities entitled to vote thereon
approve, or there otherwise occurs or is commenced, a sale,
lease, exchange or other disposition of all or substantially
all the assets, or the dissolution or liquidation, of Telxon,
or any merger, consolidation or reorganization to which Telxon
is a party and as the result of which Telxon's stockholders
prior to the transaction do not own at least fifty percent
(50%) of the voting power of the surviving entity in the
election of directors, or (iii) the Continuing Directors cease
for any reason to constitute at least a majority of the Telxon
Board of Directors, or (iv) any other event occurs which is of
such a nature that would be required to be reported as a
change in control in response to Item 1(a) of the Current
Report on Form 8-K, as in effect on the date hereof pursuant
to Section 13 or 15(d) of the Exchange Act, or similar
successor public filing; provided that any event described in
the foregoing clauses (i)-(iv) shall constitute a "Hostile
Change in Control" if the transaction causing such change in
control shall not have been approved by the affirmative vote
of at least a majority of Telxon's Board of Directors, which
approving majority includes a majority of the then Continuing
Directors.
(B) "Continuing Directors" means and includes the
persons constituting Telxon's Board of Directors as of the
date of this Agreement as well as each person who becomes a
director of Telxon subsequent to the date of this Agreement
whose election, or nomination for election by Telxon's
stockholders, was approved by an affirmative vote of at least
a majority of the then Continuing Directors (either by a
specific vote or by approval of the proxy statement of Telxon
in which such person is named as a nominee for director or of
the inclusion of such person in such proxy statement as such a
nominee, in any such case without objection by any member of
such approving majority of the then Continuing Directors to
the nomination of such person or the naming of such person as
a director nominee), for so long as each such director shall
remain in office.
(C) "Person" means and includes any individual,
corporation, partnership, group, association or other
"person", as such term is used in Section 14(d) of the
Exchange Act, but excluding Telxon or any employee benefit
plan sponsored by Telxon.
(D) "Voting Securities" means the Telxon Common
Stock, par value $0.01 per share, and any and all other then
outstanding Telxon securities ordinarily having the right to
vote generally in the election of the Telxon directors.
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(iii) the investor designee shall be named by Axiom so long as
it holds all of the Shares acquired by it pursuant to the Subscription
Agreement of even date, and otherwise by Investors holding no less than
seventy five percent (75%) of the Shares then held by the Investors (a
"Super Majority in Interest of the Investors"), so long as any such
Investor is then a Stockholder, and the observer shall be named by a
Super Majority in Interest of the Investors. The Investors shall have
the right to name the Investor Board designee so long as they then own
an aggregate of at least five (5%) of the then issued and outstanding
Shares, and the Investor Observer so long as they then own an aggregate
of at least ten percent (10%) of the then issued and outstanding
Shares. The person sitting from time to time as the Chief Executive
Officer of the Corporation shall automatically succeed as a Director to
his predecessor Chief Executive Officer (succeeding Chief Executive
Officers shall be deemed to be designees for the purposes herein).
(c) METHOD. A designee may be named at any time, and from time to time,
by delivering written notice duly executed by the designator to the Secretary or
an Assistant Secretary of the Corporation for inclusion in the Corporation's
minute book. Upon receipt of a designation, the Secretary or an Assistant
Secretary of the Corporation shall circulate to the Stockholders an action by
written consent to effectuate the designation (and each Stockholder agrees to
vote its Shares to effectuate the designation).
(d) COMMITTEES. The Telxon designees and the Investor designee have the
right to sit on all committees established by the Board.
(e) VACANCIES. No vacancy of a Board seat designated and effectuated in
accordance with this Section 1 shall be filled other than in accordance with
this Section 1. At such time as a designator's shareholdings fall below the
percentage required to entitle it to designate Board members, that designator's
Board seat shall be deemed vacated and shall not be re-filled except by the vote
of the Stockholders in accordance with the Corporation's By-laws.
(f) BOARD EXPENSES. The Corporation agrees to reimburse each of the
directors elected to the Corporation's Board of Directors (and any Investor
Observer) for their reasonable out-of-pocket travel and lodging expenses
incurred attending Board of Directors' meetings and performing their respective
obligations and responsibilities to the Corporation.
2. GOVERNANCE.
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(a) BY-LAWS. The Corporation's By-laws shall continue in full force and
effect from and after the effective date of this Agreement. To the extent that
the terms and conditions of this Agreement conflict with the Corporation's
By-laws, the terms and conditions of this Agreement shall control.
(b) BOARD MEETINGS. The Board of Directors shall conduct at least one
Board meeting during each fiscal quarter of the Corporation.
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(c) STOCKHOLDER VOTES. Except as otherwise provided in this Agreement
or as required by applicable law, any vote, approval, authorization or other
action to be taken by the Stockholders shall be determined by a majority vote
based on the number of Shares then owned by them.
(d) ACTION BY WRITTEN CONSENT. Unless otherwise required by law, any
vote, approval, authorization or other action to be taken by the Stockholders or
Directors of the Corporation may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the number of Stockholders required to
pass such matter at a meeting of the Stockholders where all Stockholders
entitled to vote were present, or by all of the Directors, as the case may be.
Consents may be executed in several counterparts all of which when taken
together shall constitute a single integrated consent. The original (or copies
if the originals are not available) of such consents shall be entered in the
Corporation's minute book.
(e) PUBLIC OFFERING AND SALE OF CORPORATION. During the period
commencing December 1, 1998, and ending September 30, 2000 (the "Stockholder
Approval Period"), or at any time after the occurrence of a Hostile Change in
Control, the Stockholders shall have sole authority to direct the Corporation to
take the following actions:
(i) to undertake any public offering of securities of the
Corporation; or
(ii) to sell the Corporation as an entirety, whether by
merger, consolidation, stock sale, asset sale, or otherwise.
During the Stockholder Approval Period, or at any time after the occurrence of a
Hostile Change in Control, in the event that the Investors then own ten percent
(10%) or more of the issued and outstanding Shares, and as a group they vote, by
majority vote of the Shares held by the Investors, in favor of either: (i) the
first firm commitment underwritten public offering of the Shares (or units which
include the Shares as an element) at a public offering price of not less than
Eight Dollars ($8.00) per Share, pursuant to a Registration Statement, on Form
S-1 or other appropriate form, filed by the Corporation under the Securities Act
of 1933, as amended, pursuant to which the Corporation receives proceeds, net of
underwriting discounts, commissions and other expenses of the offering, of not
less than Eight Million Dollars ($8,000,000) ("IPO"); or (ii) the sale of the
Corporation as an entirety, whether by merger, consolidation, stock sale, asset
sale, or otherwise ("Private Sale"), for the higher of a gross sale price of
Seventy Five Million Dollars ($75,000,000) or Eight Dollars ($8.00) per share,
then Telxon agrees to also vote its Shares in favor of, and to take all other
actions necessary to effectuate, such IPO or Private Sale, and agrees to cause
its Board designees to take all actions that are required by law to be taken by
a Delaware corporation's board of directors to effectuate any such transaction.
Without limiting the generality of Section 6(l), the parties hereby acknowledge
and confirm that the provisions of this Section 2(e) shall be binding upon
Telxon and any successor-in-interest thereto.
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(f) NEWLY ISSUED SHARES. The Stockholders shall have sole authority to
determine whether the Corporation is permitted to issue any equity securities,
except in an IPO, or securities convertible into or exchangeable for equity
securities. Authority for the Corporation to issue such securities shall require
an affirmative vote of at least ninety two and one half percent (92.5%) of all
of the then issued and outstanding Shares.
(g) MERGERS, ASSET SALES ETC. Other than Private Sales approved
pursuant to Section 2(e), any merger, consolidation, reorganization,
reclassification or recapitalization involving the Corporation, or any sale,
lease, exchange or other disposition of all or substantially all of the assets,
or the dissolution or liquidation, of the Corporation, shall require the
affirmative vote of at least ninety two and one half percent (92.5%) of all of
the then issued and outstanding Shares.
(h) AGREEMENTS WITH TELXON CORPORATION. The Board of Directors shall
have sole authority, by the affirmative vote of Directors representing one
hundred percent (100%) of the total number of seats then constituting the full
Board, to determine whether the Corporation may authorize or approve any
contract, agreement, arrangement or transaction (or amendment, modification,
assignment, termination or waiver thereof) between Telxon Corporation and the
Corporation, or to waive any failure of performance by Telxon Corporation
thereunder, other than any of the foregoing which are done in the ordinary
course of the Corporation's business.
3. TRANSFER OF SHARES.
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(a) PROHIBITION ON TRANSFER. No Stockholder shall sell, exchange, give,
transfer, assign, pledge, encumber, hypothecate, or otherwise dispose of any
Shares, or any legal, beneficial or other interest in any Shares, whether now
owned or hereafter acquired, whether voluntarily, involuntarily, by operation of
law, or otherwise, including by way of intestacy, will, gift, bankruptcy,
execution, or seizure and sale by legal process (such events separately and
collectively are referred to as a "Transfer," and the transferee is referred to
as a "Transferee"), except as provided in this Agreement.
(b) CORPORATION RIGHT OF FIRST REFUSAL. In the event that a Stockholder
at any time desires to Transfer all or any portion of its Shares to any third
party (the "Offeror"), it must first offer to Transfer its Shares to the
Corporation. Such offer must be upon the same terms and conditions as it
proposes to Transfer such Shares to the Offeror, which terms and conditions
shall be set forth in a written notice of offer (the "Notice of Offer"). The
Notice of Offer shall state with particularity the terms upon which the Transfer
of the Shares is proposed to be made, including, without limitation, the
purchase price to be paid for the Shares, if any, the time and method of
payment, and if payment is to be made other than in cash, a description of the
non-cash consideration and the rate of interest, if any, to be paid on the
non-cash portion of said purchase price (collectively the "Offer Price and
Terms"). The Corporation shall have a period of fifteen (15) days after receipt
of the Notice of Offer within which to accept (as to all, but not less than all,
of the tendered Shares) or reject in writing the offer of Transfer. Should the
Corporation accept the offer, it shall, within ten (10) days of its acceptance,
acquire the tendered Shares at the Offer
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Price and Terms. Failure of the Corporation to respond in writing to a Notice of
Offer within the fifteen (15) day period shall be deemed a rejection of said
offer.
(c) STOCKHOLDER RIGHT OF FIRST REFUSAL. Should the subject Shares not
be acquired by the Corporation at the expiration of the period specified in
Section 3(b), the tendering Stockholder shall next offer to Transfer such Shares
to the Stockholders (excluding the tendering Stockholder), if any, pro-rata to
their Share interests, at the Offer Price and Terms, by providing the
Stockholders with a copy of the Notice of Offer. The Corporation shall provide
the tendering Stockholder with the then current Stockholder address list to
enable it to provide all required notices under this Section 3(c) and under
Section 3(d). The Stockholders shall have a period of fifteen (15) days after
receipt of the Notice of Offer within which to accept or reject in writing the
offer of Transfer. Should any Stockholder accept the offer, it shall, within ten
(10) days of its acceptance, acquire the tendered Shares at the Offer Price and
Terms. Failure of any Stockholder to respond in writing to a Notice of Offer
within such fifteen (15) day period shall be deemed a rejection of said offer.
In the event that Stockholder acceptances of the offer are, in the aggregate,
for fewer than all of the tendered Shares, then the tendering Stockholder shall
so notify the Stockholders who have elected to acquire tendered Shares, which
electing Stockholders shall have an additional seven (7) day period following
receipt of such notice to acquire the remaining Shares, pro rata to their Share
interests (as between themselves); provided that if the offer is not accepted by
Stockholders as to all of the tendered Shares, then none of the Stockholders
shall have any right to acquire any of the tendered Shares pursuant to this
Section 3(c).
(d) CO-SALE.
(i) No later than ten (10) days after the expiration of the
time periods specified in Section 3(c), the tendering Stockholder shall
notify the other Stockholders in writing whether the Corporation and
the Stockholders have failed to acquire all of the tendered Shares
pursuant to Sections 3(b) and (c) (the "Co-Sale Notice"). If all of the
tendered Shares have not been acquired pursuant to either Section 3(b)
or 3(c), then each Stockholder other than the tendering Stockholder
shall have the right to participate in the tendering Stockholder's sale
of Shares by selling a portion of its Shares on the terms set forth in
the Notice of Offer, in an amount equal to the product obtained by
multiplying (x) the aggregate number of Shares to be sold by the
tendering Stockholder by (y) the Ownership Percentage (defined herein)
of Shares owned by each Stockholder other than the tendering
Stockholder who elects to participate in the tendering Stockholder's
sale (each a "Participant," and collectively the "Participants"). The
Ownership Percentage for any Participant shall be the percentage figure
which expresses the ratio between (x) the number of Shares owned by
such Participant and (y) the aggregate of (A) the number of Shares
owned by all Participants and (B) the number of Shares owned by the
tendering Stockholder (excluding any Shares acquired pursuant to
Section 3(b) or 3(c)). Within five (5) days after its receipt of the
Co-Sale Notice, any Stockholder electing to participate in the
tendering Stockholder's Transfer shall notify the tendering Stockholder
in writing of the number of Shares held by it to be included in the
sale.
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(ii) Each Participant shall enter into such agreements and
take such actions consistent with the Notice of Offer, and as otherwise
reasonably directed by the tendering Stockholder in order to effect the
subject Transfer. The proceeds of any Transfer under this Section 3(d)
shall be remitted directly to each Participant by the Offeror.
(iii) The provisions of this Section 3(d) shall not apply to
any Transfer permitted under Section 3(g).
(e) TRANSFER. Subject to Section 6(c), if all of the tendered Shares
are not acquired by either the Corporation and/or the Stockholders within the
time periods provided for in Sections 3(b) and (c), respectively, and provided
that the notice required under Section 3(c), if any, was provided within five
(5) days after the end of the time period provided for in Section 3(b), then the
tendering Stockholder and each Participant may Transfer its Shares to the
Offeror at Offer Price and Terms; provided, however, that such Transfer must be
completed within forty five (45) days from the expiration of all response
periods provided in Sections 3(b), (c) or (d), as applicable.
(f) ALTERATION OF TERMS. Each time the Offer Price and Terms are
altered in any way, including, but not limited to, changes in the identity of
the proposed Offeror or the consideration to be paid for the Shares to be
Transferred, or in the event that a Transfer is not completed within the time
period provided for in Section 3(e), then the subject Shares shall be re-offered
to the Corporation and the Stockholders in accordance with Section 3(b) and (c),
respectively, and a new Co-Sale Notice shall be given in accordance with Section
3(d), as if a totally new transaction were proposed.
(g) PERMITTED TRANSFER.
(i) Subject to Section 6(c), a non-entity Stockholder is
permitted to Transfer his Shares during his life without first
offering his Shares to the Corporation or Stockholders in accordance
with Sections 3(b) and (c), respectively, if, but only if, the
Transfer is to Stockholder's spouse or lineal descendants, or any
trust created for his or their benefit, or to a corporation wholly
owned by the Stockholder and/or his spouse and lineal descendants. An
estate, executor, administrator or other personal representative of a
deceased non-entity Stockholder is permitted to hold and, subject to
Section 6(c), Transfer the deceased nonentity Stockholder's Shares to
the deceased Stockholder's devisees and heirs at law. Shares
Transferred in accordance with this Section 3(g) may not be further
Transferred except in accordance with the provisions of this Section
3.
(ii) Subject to Section 6(c), an entity Stockholder is
permitted to Transfer its Shares without first offering its Shares to
the Corporation or Stockholders in accordance with Section 3(b) and
(c), respectively, if, but only if: (i) the Transfer is to an entity
of which at least fifty-one percent (51%) is owned by the Stockholder
or its affiliates, or if at least fifty-one percent (51%) of the
Stockholder is owned by the Transferee or an affiliate of the
Stockholder, and each such Transferee may further Transfer such Shares
to
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similarly controlled or controlling affiliate entities; or (ii) the
Transfer is a spin-off, dividend or other distribution to the owners
of the Stockholder, based on such ownership interests.
(iii) In the event of a permitted Transfer under this Section
3(g), the Transferor shall promptly furnish written notice thereof to
the Corporation. Concurrently therewith, the Transferee shall execute
a written agreement to be bound by the terms and provisions of this
Agreement, as provided in this Section 3(g).
(h) CERTAIN PURCHASE MONEY LIENS. Notwithstanding anything in Section
3 to the contrary, neither the grant of nor the foreclosure or other realization
by the Company or by Telxon, as the case may be, on the security interest in
200,000 Shares granted by Xxxxx X. Xxxxxx to the Corporation to secure the
payment of $372,000, nor the security interest in 808,500 Shares granted by
Telantis Venture Partners IV, Inc. to Telxon to secure the payment of
$1,503,810, or the security interest in up to 120,635 Shares, and warrants to
purchase 12,064 Shares, granted by Telantis Venture Partners V, Inc. to Telxon
to secure the payment of up to $422,000 shall be a prohibited Transfer under
Section 3(a).
(i) SPECIAL UNDERWRITER REQUIREMENTS. Each Stockholder agrees, if
requested by the Corporation and an underwriter of Common (or other securities)
of the Corporation, not to sell or otherwise transfer or dispose of any Common
(or other securities) of the Corporation held by such Stockholder during the one
hundred eighty (180) day period following the effective date of a registration
statement of the Corporation filed under the Securities Act, provided that such
agreement only applies to the first such registration statement of the
Corporation including securities to be sold on its behalf to the public in an
underwritten offering. Such agreement shall be in writing in a form satisfactory
to the Corporation and such underwriter. The Corporation may impose
stop-transfer instructions with respect to the shares (or securities) subject to
the foregoing restriction until the end of said one hundred eighty (180) day
period.
(j) ADDENDUM. Before the holdings of any Transferee shall be honored
by the Corporation or accepted upon its stock register and before any right,
title or interest whatsoever therein shall vest in such Transferee, and before
the Corporation shall issue or agree to issue any previously unissued (or
reissue or agree to reissue, from treasury or otherwise) Shares of the
Corporation, it shall require, as a condition to the issuance of a stock
certificate or other instrument evidencing such stock, that said Transferee or
the person or entity to whom any such previously unissued (or reissued) Shares
are to be issued, as the case may be, execute and deliver to the Secretary of
the Corporation an Addendum to this Agreement in substantially the following
form with appropriate insertions:
ADDENDUM
Pursuant to the STOCKHOLDERS AGREEMENT (the
"Agreement") dated ___, 1998 by and among Aironet Wireless
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Communications, Inc., a Delaware corporation (the
"Corporation"), and its Stockholders, the undersigned, now the
holder of __________ of the Corporation evidenced by
certificate(s) numbered __________, does hereby become a party
to the Agreement entitled to the rights, and subject to the
obligations, as set forth therein, to the extent the
undersigned is record holder of shares of the Corporation's
capital stock with the same force and effect as though it had
executed said Agreement as an initial signatory party thereto.
The undersigned acknowledges that he has read the Agreement
and is familiar with and understands its terms.
Dated this _____ day of __________, 199__.
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(signature)
Whether or not such Addendum is executed, each Transferee or new holder of
Shares shall in any event be bound by, and shall perform the obligations imposed
by, this Agreement with the same force and effect as if such Transferee or new
holder had signed this instrument.
(k) HOLDERS OF OTHER SECURITIES. On the date of this Agreement,
options and warrants to purchase Shares are held by the persons identified in
SCHEDULE 3(K). The Corporation shall use its best efforts to obtain from each
such person an Addendum similar to that provided for in Section 3(j) which in
substance provides that any Shares issued upon the exercise of such options and
warrants, and the holder thereof, shall be bound by the terms and conditions
hereof and shall then, but not before, be entitled to the rights afforded to the
Stockholders hereunder. Before the Corporation shall grant or issue, or agree to
grant or issue, any securities convertible into or exercisable or exchangeable
for, stock of the Corporation, the Corporation shall require, as a condition
thereto, that the grantee or recipient of such securities execute an Addendum of
the type described in this Section 3(k), except that no such Addendum shall be
required with respect to securities which may not be converted, exercised or
exchanged into or for stock of the Corporation prior to an IPO.
(l) PURCHASE OF INVESTOR SHARES UPON CERTAIN CHANGES IN CONTROL. On or
within ten (10) days after the date ninety (90) days after the consummation of a
Change in Control
(A) which is not a Hostile Change in Control,
(B) which occurs prior to May 1, 2001, and
(C) which occurs at a time when Telxon then owns at least
twenty percent (20%) of the issued and outstanding Shares,
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the Person surviving such Change in Control shall give written notice to each of
the Investors that the surviving Person will purchase all Shares which such
Investor then owns at a price of Ten and 50/100 Dollars ($10.50) per Share in
cash. Each Investor must accept or reject such offer in writing within twenty
(20) after its receipt of the surviving Person's notice. If not timely rejected,
the surviving Person and each Investor that does not timely reject the surviving
Person's offer shall consummate the purchase of each such Investor's Shares by
the surviving Person on or before the date ten (10) days after the earlier of
(i) the date that the surviving Person receives the Investor's acceptance or
(ii) the expiration of the Investor's twenty (20) day rejection period. The
transactions under this Section 3(l) shall not be subject to any of the other
provisions of this Section 3, but the surviving Person and such purchased Shares
shall remain subject to this Agreement. Without limiting the generality of
Section 6(l), Telxon shall take all necessary actions to ensure that such a
surviving Person is obligated to take the actions required of it under this
Section 3(l).
4. CONFLICTS OF INTEREST
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(a) As long as Telxon owns twenty percent (20%) or more of the issued
and outstanding Shares: (i) the Corporation's Chief Executive Officer shall not
be permitted to serve Telxon as an officer or director, and may not own five
percent (5%) or more of Telxon's issued and outstanding capital stock; and (ii)
no officer of Telxon may serve as an officer of Aironet (the prohibition in this
clause (ii) shall not commence until July 1, 1998).
(b) As Telxon remains a stockholder of the Corporation, and as the
Corporation and Telxon may engage in the same or similar activities or lines of
business and may have an interest in the same areas of corporate opportunity,
and in recognition of: (i) the benefits to be derived by the Corporation through
its continued contractual, corporate and business relations with Telxon
(including service of officers and Directors of Telxon as Directors of the
Corporation); and (ii) the difficulties and uncertainties attendant to any
Director, who desires and endeavors fully to satisfy such Director's fiduciary
duties, in determining the full scope of such duties in any particular
situation, the provisions of this Section 4 are set forth to regulate, define
and guide the conduct of certain affairs of the Corporation as they may involve
Telxon and its officers and Directors, and the powers, rights, duties,
obligations and liabilities of the Corporation and its officers, Directors and
stockholders in connection therewith.
(c) Except as Telxon may otherwise agree in writing:
(i) Except as may otherwise be set forth in any agreements
between the Corporation and Telxon, Telxon shall not have a duty to
refrain from engaging, directly or indirectly, in the same or similar
business activities or lines of business as the Corporation presently
engages in and in the future may engage in; and
(ii) neither Telxon nor any officer or Director thereof shall
be liable to the Corporation or its stockholders for breach of any
fiduciary duty by reason of any such activities of Telxon or of such
person's direct or indirect participation therein.
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In the event that Telxon acquires knowledge of a potential transaction or matter
that may be a corporate opportunity for both Telxon and the Corporation, Telxon
shall have no duty to communicate or offer such corporate opportunity to the
Corporation and shall not be liable to the Corporation or its stockholders for
breach of any fiduciary duty as a stockholder of the Corporation or controlling
person by reason of the fact that Telxon pursues or acquires such corporate
opportunity for itself, directs such corporate opportunity to another person or
entity, or does not communicate information regarding, or offer, such corporate
opportunity to the Corporation.
(d) In the event that a Director, officer or employee of the
Corporation who is also a Director, officer or employee of Telxon acquires
knowledge of a potential transaction or matter that may be a corporate
opportunity for the Corporation and Telxon (whether such potential transaction
or matter is proposed by a third-party or is conceived of by such Director,
officer or employee of the Corporation), such Director, officer or employee
shall be entitled to offer such corporate opportunity to the Corporation or
Telxon as such Director, officer or employee deems appropriate under the
circumstances in his sole and absolute discretion, and no such Director, officer
or employee shall be liable to the Corporation or its stockholders for breach of
any fiduciary duty or duty of loyalty or failure to act in the best interests of
the Corporation or the derivation of any improper personal benefit by reason of
the fact that: (i) such Director, officer or employee offered such corporate
opportunity to Telxon (rather than the Corporation) or did not communicate
information regarding such corporate opportunity to the Corporation; or (ii)
Telxon pursues or acquires such corporate opportunity for itself or directs such
corporate opportunity to another person or does not communicate information
regarding such corporate opportunity to the Corporation. All information learned
by any director of the Corporation in the course of his service as a director is
confidential information of the Corporation, and notwithstanding any provision
in this Agreement to the contrary, no director may utilize such confidential
information except for the benefit of the Corporation, and may not disclose such
confidential information to any person or entity other than for the benefit of
the Corporation in the course of the director's service on the Corporation's
Board, or as an officer or employee of the Corporation.
(e) Subject to Section 2(g), no contract, agreement, arrangement or
transaction (or any amendment, modification or termination thereof) between the
Corporation and Telxon or any Related Entity (defined herein) or between the
Corporation and one or more of the Directors or officers of the Corporation,
Telxon or any Related Entity, shall be void or voidable solely for the reason
that Telxon or any Related Entity or any one or more of the officers or
Directors of the Corporation, Telxon or any Related Entity are parties thereto,
or solely because any such Directors or officers are present at or participate
in the meeting of the Board of Directors or committee thereof which authorizes
the contract, agreement, arrangement, transaction, amendment, modification or
termination or solely because his or their votes are counted for such purpose,
but any such contract, agreement, arrangement or transaction (or any amendment,
modification or termination thereof) shall be governed by the provisions of this
Agreement, the Certificate, the Corporation's By-laws, Delaware Law and other
applicable law. For purposes of this Section 4, the term "Related Entities"
means any Director of the Corporation, or any corporations,
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partnerships, associations or other organizations in which one or more of its
Directors have a direct or indirect financial or non-financial interest.
(f) Subject to Section 2(g), Directors of the Corporation who are also
directors or officers of Telxon or any Related Entity may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee that authorizes or approves any such contract, agreement,
arrangement or transaction (or amendment, modification or termination thereof),
and may vote thereon. Outstanding Shares owned by Telxon and any Related
Entities may be counted in determining the presence of a quorum at a meeting of
stockholders that authorizes or approves any such contract, agreement,
arrangement or transaction (or amendment, modification or termination thereof),
and may vote thereon.
(g) Neither Telxon nor any officer or Director thereof or any Related
Entity shall be liable to the Corporation or its stockholders for breach of any
fiduciary duty or duty of loyalty or failure to act in the best interests of the
Corporation or the derivation of any improper personal benefit by reason of the
fact that Telxon or an officer or Director thereof or such Related Entity in
good faith takes any action or exercises any rights or gives or withholds any
consent in connection with any agreement or contract between Telxon or of such
Related Entity and the Corporation. No vote cast or other action taken by any
person who is an officer, Director or other representative of Telxon or such
Related Entity, which vote is cast or action is taken by such person in his
capacity as a Director of the Corporation, shall constitute an action of or the
exercise of a right by or a consent of Telxon or such Related Entity for the
purpose of any such agreement or contract.
(h) Any person or entity purchasing or otherwise acquiring any
interest in any shares of capital stock of the Corporation shall, by virtue of
the legend required by Section 5(a) to be borne on certificates evidencing
Shares, be deemed to have notice of, to understand the ramifications of, to have
consented to the provisions of, and, to the fullest extent permitted by Delaware
Law, to have waived his right to contest this Section 4.
(i) For purposes of this Section 4, any contract, agreement,
arrangement or transaction with any corporation, partnership, joint venture,
association or other entity in which the Corporation beneficially owns (directly
or indirectly) fifty percent (50%) or more of the outstanding voting stock,
voting power or similar voting interests, or with any officer or Director
thereof, shall be deemed to be a contract, agreement, arrangement or transaction
with the Corporation.
(j) For purposes of this Section 4 only: (i) the term "Corporation"
shall mean the Corporation and all corporations, partnerships, joint ventures,
associations and other entities in which the Corporation beneficially owns
(directly or indirectly) fifty percent (50%) or more of the outstanding voting
stock, voting power or similar voting interests; and (ii) the term "Telxon"
shall mean Telxon and all corporations, partnerships, joint ventures,
associations and other entities (other than the Corporation, defined in
accordance with clause (i)) in which Telxon beneficially
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owns (directly or indirectly) fifty percent (50%) or more of the outstanding
voting stock, voting power or similar voting interests.
(k) Notwithstanding anything in this Agreement to the contrary, the
foregoing provisions of this Section 4 shall expire on the date that Telxon
ceases to own beneficially Shares representing at least twenty percent (20%) of
the issued and outstanding Shares, and no person who is a Director or officer of
the Corporation is also a Director or officer of Telxon. The provisions of this
Section 4 shall automatically terminate upon the consummation of a Hostile
Change in Control, except for the provisions of Section 4(a), which shall
survive such event. The alteration, amendment, change or repeal of any provision
of this Section 4 or the adoption of any provision inconsistent with this
Section 4, shall require the express written consent of Telxon, and will not
eliminate or reduce the effect of this Section 4 in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Section 4,
would accrue or arise prior to such alteration, amendment, repeal or adoption.
5. COVENANTS
---------
(a) INSPECTIONS. Upon no less than five (5) days advance written
notice, the Corporation shall permit each Investor (or its designated
representative) to visit and inspect any of the properties of the Corporation,
including its books of account, and to discuss its affairs, finances and
accounts with the Corporation's officers and its independent public accountants.
All such inspections shall be conducted during the Corporation's business hours,
and shall not unreasonably interfere with the conduct of the Corporation's
business.
(b) FINANCIAL REPORTING. The Corporation will furnish the following
reports to the Investors:
(i) As soon as practicable after the end of each fiscal year
of the Corporation, and in any event within ninety (90) days
thereafter, a consolidated balance sheet of the Corporation and its
subsidiaries, if any, as at the end of such fiscal year, and
consolidated statements of operations, accumulated earnings and cash
flows of the Corporation and its subsidiaries, if any, for such year,
prepared in accordance with generally accepted accounting principles
consistently applied and setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable
detail, audited (without scope limitations imposed by the Corporation)
and certified by independent public accountants of recognized national
standing selected by the Corporation.
(ii) As soon as practicable after the end of the first, second
and third quarterly accounting periods in each fiscal year of the
Corporation, and in any event within forty-five (45) days thereafter,
a consolidated balance sheet of the Corporation and its subsidiaries,
if any, as of the end of each such quarterly period, and consolidated
statements of operations, accumulated earnings and cash flows of the
Corporation and its subsidiaries, if any, for such period and for the
current fiscal year to date, prepared in
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accordance with generally accepted accounting principles (provided
that such statements will not include all of the information and notes
required for complete financial statements) consistently applied and
setting forth in comparative form the figures for the corresponding
periods of the previous fiscal year, subject to changes resulting from
year-end audit adjustments.
(iii) As soon as practicable after the last day of each month,
and in any event by the twentieth day of each month, a consolidated
balance sheet of the Corporation and its subsidiaries, if any, as of
the end of each such month, and consolidated statements of operations,
accumulated earnings and cash flows of the Corporation and its
subsidiaries, if any, for such period, prepared in accordance with
generally accepted accounting principles (provided that such
statements will not include all of the information and notes required
for complete financial statements) consistently applied.
(c) PROMPT PAYMENT OF TAXES, ETC. The Corporation will promptly pay
and discharge, or cause to be paid and discharged, when due and payable, all
lawful taxes, assessments and governmental charges or levies imposed upon the
income, profits, property or business of the Corporation; provided, however,
that any such tax, assessment, charge or levy need not be paid if the validity
thereof shall at the time be contested in good faith by appropriate proceedings,
and provided, further, that unless otherwise approved by the Corporation's Board
of Directors, the Corporation will pay all such taxes, assessments, charges or
levies forthwith upon the commencement of proceedings to foreclose any lien
which may have attached as security therefor. Unless otherwise approved by the
Corporation's Board of Directors, the Corporation will promptly pay or cause to
be paid when due, or in conformance with customary trade terms, all other
obligations incident to its operations.
(d) MAINTENANCE OF PROPERTIES AND LEASES. The Corporation will keep
its properties in good repair, working order and condition, reasonable wear and
tear excepted, and from time to time make all needful and proper, or legally
required, repairs, renewals, replacements, additions and improvements thereto;
and the Corporation will at all times comply with each provision of all leases
to which it is a party or under which it occupies, or has possession of,
property if the breach of such provision might have a material adverse effect on
the condition, financial or otherwise, or operations of the Corporation.
(e) INSURANCE. The Corporation will keep its assets which are of an
insurable character insured by financially sound and reputable insurers against
loss or damage by fire, extended coverage and explosion in amounts sufficient to
prevent the Corporation from becoming a co-insurer and not in any event less
than eighty percent (80%) of the insurable value of the property insured. The
Corporation will maintain, with financially sound and reputable insurers,
insurance against other hazards and risks and liability to persons and property
to the extent and in the manner customary for companies in similar businesses
similarly situated. All such policies of insurance shall be occurrence policies
with "tail coverage" so-called respecting all prior "claims made" policies. The
Corporation shall give immediate written notice to the Investors and to insurers
of loss or damage to the property and shall promptly file proof of loss with
insurers. The Corporation shall maintain, either itself or
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under its Services Agreement with Telxon, directors and officers insurance in an
amount at least equal to that which it presently maintains.
(f) COMPLIANCE WITH REQUIREMENTS OF GOVERNMENTAL AUTHORITIES. The
Corporation shall duly observe and conform to all valid requirements of
governmental authorities relating to the conduct of its businesses or to its
property or assets.
(g) MAINTENANCE OF CORPORATE EXISTENCE, ETC. The Corporation shall
maintain in full force and effect its corporate existence, rights, government
approvals and franchises, and all licenses and other rights to use patents,
processes, licenses, trademarks, trade names or copyrights owned or possessed by
it, which are deemed by the Corporation's Board of Directors to be necessary to
the conduct of its business.
(h) PROPRIETARY INFORMATION AGREEMENT AND KEY EMPLOYEE AGREEMENT.
(i) The Corporation and each person hereafter employed by it
with access to confidential information will enter into a proprietary
information agreement as approved by the Corporation's Board of
Directors.
(ii) The Corporation will require its employees to execute
non-competition agreements as approved by the Corporation's Board of
Directors.
(iii) The Corporation will cause all technological
developments, inventions, discoveries or improvements made by
employees of the Corporation to be fully documented in engineering
notebooks in accordance with the best prevailing industrial
professional standards and, where possible and appropriate, cause all
employees to file and prosecute United States and foreign patent
applications relating to and protecting such developments.
6. MISCELLANEOUS
-------------
(a) In order to effectuate the terms and restrictions of this
Agreement, each certificate of stock evidencing Shares owned by the Stockholders
or issued by the Corporation shall bear the following legend:
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
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COPY OF THE STOCKHOLDERS AGREEMENT AND THE CORPORATION'S
BY-LAWS WILL BE MAILED BY THE CORPORATION TO ANY STOCKHOLDER
WITHOUT 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."
(b) If a Stockholder or its Transferee shall be in default under any
of the terms and conditions of this Agreement, or if any Shares are held in any
manner contrary to the terms and conditions of this Agreement, the Corporation
may avail itself of all remedies afforded at law or in equity, and in addition,
no dividends shall be paid upon the Shares with respect to which such default
exists, and the holder of such Shares shall not be entitled to vote.
(c) Notwithstanding any other provision in this Agreement to the
contrary, in order to protect the Corporation's trade secrets, no Shares may be
transferred to any person or entity, other than to or by Telxon, which directly
competes with the Corporation or, so long as Telxon shall own at least twenty
percent (20%) of the issued and outstanding Shares, Telxon, as such competitors
are determined by the Corporation or Telxon, respectively, in its reasonable
discretion. Any merger, consolidation, change of control or any other
reorganization of any Stockholder (other than Telxon) with or involving any such
competitor shall be deemed to be a transfer of Shares prohibited by the
preceding sentence. Failure of the Corporation or any Stockholders to acquire
Shares as to which notice has been given hereunder or for which a right to
acquire has become
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exercisable, and the Transfer of any Shares to any Transferee or any subsequent
Transferee, shall not be deemed to release said Shares from any of the
restrictions herein contained. All restrictions imposed in this Agreement shall
apply to any future Transfers of Shares, whether acquired through voluntary acts
or by operation of law. Any purported Transfer of Shares in violation of this
Agreement will not affect the beneficial ownership of such Shares, nor shall
such Transfer be recognized in the books and records of the Corporation. The
Stockholder, or its successor, making the purported Transfer will retain the
right to vote, the right to receive dividends and liquidation proceeds upon, and
any other rights under, its Shares. Neither the Corporation, nor any Director or
officer of the Corporation, nor any transfer agent shall be liable for any
refusal to Transfer any Shares or issue any new certificates when it or he in
good faith believes that such Transfer or issuance would be in violation of this
Agreement. Nothing in this Agreement does or shall be interpreted as granting
any Stockholder any preemptive rights.
(d) No entity Stockholder shall suffer or permit the transfer of any
ownership interest in such Stockholder, or any other transaction, the effect of
which would be to circumvent the Corporation's or any Stockholder's rights under
Sections 3(b), (c) and (d) or the prohibitions contained in Section 6(c).
(e) This Agreement shall terminate and the Shares shall cease to be
subject to this Agreement upon the (i) merger of the Corporation with or into
any other corporation in an arms length transaction, (ii) consolidation of the
Corporation with any other corporation in an arms length transaction, (iii) sale
of all of the issued and outstanding Shares of the Corporation to a single
purchaser, (iv) sale or other disposition or all or substantially all of the
Corporation's assets or (v) registration of the Corporation's then issued and
outstanding Shares pursuant to Section 12 of the Exchange Act or the Corporation
is obligated to file periodic reports with the Securities and Exchange
Commission pursuant Section 15(d) of the Exchange Act; provided, however, that
any claim for breach of this Agreement arising prior to any such termination
shall survive such termination.
(f) Section headings are not to be considered part of this Agreement;
they are included solely for convenience and are not intended to be full or
accurate descriptions of the contents hereof.
(g) All of the terms and words used in this Agreement, regardless of
the number and gender in which they are used, shall be deemed and construed to
include any other number, singular or plural, and any other gender, masculine,
feminine or neuter, as the context of this Agreement or any section or clause
herein may require, the same as if such words had been fully and properly
written in the number and gender.
(h) This Agreement constitutes the entire agreement between the
parties with respect to the within subject matter and supersedes all prior and
contemporaneous agreements, written or oral, or understandings with respect
thereto. In addition to Telxon's written consent as specifically provided for
in, and required to amend, Section 4, (i) any waiver by a party of any
provision,
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covenant or condition hereof intended for its benefit must be in writing and
executed by that party; provided, however, that any waiver by the Stockholders
holding ninety five percent (95%) or more of the then issued and outstanding
Shares shall be deemed to be a waiver by all Stockholders, provided that such
waiver does not treat any Stockholder differently from other Stockholders, (ii)
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, (iii) this
Agreement may not be amended unless the Corporation and the Stockholders holding
ninety five percent (95%) or more of the then issued and outstanding Shares have
consented to the amendment in writing, provided that any amendment that treats a
Stockholder differently than other Stockholders must be consented to by such
Stockholder.
(i) All clauses of this Agreement are distinct and severable. If any
clause shall be held to be unenforceable or overly broad, a court of competent
jurisdiction is hereby authorized to modify such clause so as to render the
terms, provisions and restrictions hereof enforceable to the maximum extent
permitted by law.
(j) This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which, when taken together, shall
constitute one and the same instrument. Faxed signatures shall be deemed to be
originals for evidentiary purposes.
(k) Notices required hereunder shall be deemed to have been given when
mailed, by certified mail, addressed to the Stockholders as set forth in the
stock records of the Corporation, or as set forth in any notice of change of
address previously given in writing by the addressee to the addressor, and to
the Corporation at its principal offices, with a copy to Xxxxxx X Xxxxxxx, Esq.,
Xxxxxxx Xxxxx Xxxxxx LLP, 000 Xxxxxxxx Xxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxx 00000,
or as set forth in any notice of change of address previously given in writing
by the addressee to the addressor.
(l) The terms, provisions and restrictions set forth in this Agreement
shall be binding upon the Stockholders of the Corporation and their respective
heirs, executors, administrators, personal representatives, successors and
assigns, and upon the Corporation and any successors-in-interest to the
Corporation.
(m) This Agreement shall be governed under, and in accordance with the
laws of the State of Delaware, without regards to conflict or choice of laws,
statutes, regulations, rules or principles. Any action relating to the execution
or performance of this Agreement may be brought in the courts, state or federal,
sitting in Cuyahoga or 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx, President
INVESTORS, INDIVIDUALS: /s/ Xxxxx X. Xxxx
---------------------- ------------------------------------------
XXXXX X. XXXX
21
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/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx, President
TELXON: TELXON CORPORATION
------
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx, Senior Vice President
and Chief Financial Officer
22
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: Xxxx Xxxxx
--------------------------------------
Its: Chairman
--------------------------------------
