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EXHIBIT 10.16
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STOCKHOLDER AGREEMENT
(TELXON CORPORATION)
THIS STOCKHOLDER AGREEMENT (the "Agreement") is made and
entered into as of November 8, 1999, between Cisco Systems, Inc., a California
corporation ("Parent"), Osprey Acquisition Corporation, a Delaware corporation
and wholly-owned subsidiary of Parent ("Merger Sub"), and Telxon Corporation
("Stockholder"), a stockholder of Aironet Wireless Communications, Inc., a
corporation existing under the laws of Delaware ("Company").
RECITALS:
WHEREAS, pursuant to an Agreement and Plan of Merger and
Reorganization dated as of November 8, 1999, by and among Parent, Merger Sub and
Company (such agreement as it may be amended or restated is hereinafter referred
to as the "Reorganization Agreement"), the parties agreed that on the signing of
the Reorganization Agreement, Parent, Merger Sub and Stockholder would execute
and deliver a Stockholder Agreement containing the terms and conditions set
forth in an Exhibit to the Reorganization Agreement together with such other
terms and conditions as may be agreed to by the parties to the Reorganization
Agreement acting reasonably;
WHEREAS, Parent has agreed to acquire the outstanding
securities of Company pursuant to a statutory merger of Merger Sub with and into
Company (the "Merger") effected in part through the conversion of each
outstanding share of capital stock of Company (the "Company Capital Stock"),
into shares of common stock of Parent (the "Parent Shares") at the rate set
forth in the Reorganization Agreement (the "Transaction");
WHEREAS, in order to induce Parent to enter into the
Transaction, Company has agreed to use its best efforts to solicit the proxy of
certain stockholders of Company on behalf of Parent, and to cause certain
stockholders of Company to execute and deliver Stockholder Agreements to Parent;
WHEREAS, Stockholder is the registered and beneficial owner of
such number of shares of the outstanding Company Capital Stock as is indicated
on the signature page of this Agreement (the "Shares"); and
WHEREAS, in order to induce Parent to enter into the
Transaction, certain stockholders of Company have agreed not to transfer or
otherwise dispose of any of the Shares, or any other shares of Company Capital
Stock acquired by such stockholder hereafter and prior to the Expiration Date
(as defined in Section 1.1 below), and have agreed to vote the Shares and any
other such shares of Company Capital Stock so as to facilitate consummation of
the Transaction.
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NOW, THEREFORE, the parties agree as follows:
1. SHARE OWNERSHIP AND AGREEMENT TO RETAIN SHARES.
1.1 TRANSFER AND ENCUMBRANCE.
(a) Stockholder is the beneficial owner of
that number of Shares of Company Capital Stock set forth on the signature page
hereto and, except as otherwise set forth on the signature page hereto, has held
such Company Capital Stock at all times since the date set forth on such
signature page. The Shares constitute the Stockholder's entire interest in the
outstanding Company Capital Stock. No other person or entity not a signatory to
this Agreement has a beneficial interest in or a right to acquire the Shares or
any portion of the Shares. The Shares are and will be at all times up until the
Expiration Date free and clear of any liens, claims, options, charges or other
encumbrances other than the existing pledge of the Shares in favor of Foothill
Capital Corporation.
(b) Stockholder agrees not to transfer
(except to a Permitted Assignee as provided in Section 9.2 below or as may be
specifically required by court order or by operation of law), sell, exchange,
pledge or otherwise dispose of or encumber the Shares or any New Shares (as
defined below), or to make any offer or agreement relating thereto, at any time
prior to the Expiration Date. As used herein, the term "Expiration Date" shall
mean the earlier to occur of (i) the Effective Time (as defined in the
Reorganization Agreement) of the Transaction, and (ii) the termination of the
Reorganization Agreement.
1.2 NEW SHARES. Stockholder agrees that any shares of
Company Capital Stock that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the date of this
Agreement and prior to the Expiration Date ("New Shares") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. AGREEMENT TO VOTE SHARES. Prior to the Expiration Date, at
every meeting of the stockholders of Company called with respect to any of the
following, and at every adjournment thereof, and on every action or approval by
written resolution of the stockholders of Company with respect to any of the
following, Stockholder shall vote the Shares and any New Shares (i) in favor of
approval of the Transaction and the other transactions contemplated by the
Reorganization Agreement and (ii) against any proposal for any recapitalization,
merger, sale of assets or other business combination (other than the
Transaction) between Company and any person or entity other than Parent and
Merger Sub (a "Competing Transaction").
3. IRREVOCABLE PROXY. Stockholder is hereby delivering to
Parent a duly executed proxy in the form attached hereto as EXHIBIT A (the
"Proxy") with respect to each meeting of stockholders of Company, such Proxy to
cover the total number of Shares and New Shares in respect of which Stockholder
is entitled to vote at any such meeting. Upon the execution of this Agreement by
the Stockholder, the Stockholder hereby revokes any and all prior proxies given
by the Stockholder with respect to the Shares and agrees not to grant any
subsequent proxies with respect to the Shares or any New Shares until after the
Expiration Date.
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4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER.
Stockholder hereby represents, warrants and covenants to Parent as follows:
(a) Until the Expiration Date, the Stockholder
will not (and will use such Stockholder's reasonable best efforts to cause
Company, its affiliates, officers, directors and employees and any investment
banker, attorney, accountant or other agent retained by such Stockholder or
them, not to): (i) initiate or solicit, directly or indirectly, any proposal,
plan of offer to acquire all or any substantial part of the business or
properties or Company Capital Stock, whether by merger, purchase of assets,
tender offer or otherwise, or to liquidate Company or otherwise distribute to
the Stockholders of Company all or any substantial part of the business,
properties or Company Capital Stock (each, an "Acquisition Proposal"); (ii)
initiate, directly or indirectly, any contact with any person in an effort to or
with a view towards soliciting any Acquisition Proposal; (iii) furnish
information concerning Company's business, properties or assets to any
corporation, partnership, person or other entity or group (other than Parent or
Merger Sub, or any associate, agent or representative of Parent or Merger Sub),
under any circumstances that would reasonably be expected to relate to an actual
or potential Acquisition Proposal; or (iv) negotiate or enter into discussions
or an agreement, directly or indirectly, with any entity or group with respect
of any potential Acquisition Proposal provided that, in the case of clauses
(iii) and (iv), the foregoing (A) shall not prevent Stockholder, in
Stockholder's capacity as a director or officer (as the case may be) of Company,
from taking any actions permitted under Section 4.3 of the Reorganization
Agreement and (B) shall not require Stockholder to use its reasonable best
efforts to cause the Company or its affiliates, officers, directors, or
employees or any investment banker, accountant, attorney or other agent to
refrain from taking any action permitted by Section 4.3 of the Reorganization
Agreement. In the event the Stockholder shall receive or become aware of any
Acquisition Proposal subsequent to the date hereof, such Stockholder shall
promptly inform Parent as to any such matter and the details thereof to the
extent possible without breaching any other agreement to which such Stockholder
is a party or violating its fiduciary duties.
(b) Stockholder has the corporate authority to
execute and deliver this Stockholder Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This
Stockholder Agreement has been duly and validly executed and delivered by
Stockholder and, assuming the due authorization, execution and delivery by
Parent, constitutes a legal, valid and binding obligation of Stockholder,
enforceable against Stockholder in accordance with its terms except that (i) the
enforceability thereof may be subject to applicable bankruptcy, insolvency or
other similar laws, now or hereinafter in effect affecting creditors' rights
generally and (ii) the availability of the remedy of specific performance or
injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought.
(c) The execution and delivery of this
Stockholder Agreement by Stockholder does not, and the performance of this
Stockholder Agreement by Stockholder shall not result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance, on any of the Shares or New Shares pursuant to, any note, bond,
mortgage, indenture, contract,
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agreement, lease, license, permit, franchise or other instrument or obligation
to which Stockholder is a party or by which Stockholder or the Shares or New
Shares are or will be bound or affected.
5. ADDITIONAL DOCUMENTS. Stockholder hereby covenants and
agrees to execute and deliver any additional documents reasonably necessary, to
carry out the purpose and intent of this Agreement.
6. CONSENT AND WAIVER. Stockholder hereby gives any consents
or waivers that are reasonably required for the consummation of the Transaction
under the terms of any agreement to which Stockholder is a party or pursuant to
any rights Stockholder may have.
7. TERMINATION. This Agreement and the Proxy delivered in
connection herewith shall terminate and shall have no further force or effect as
of the Expiration Date.
8. CONFIDENTIALITY. Each of the parties hereto agrees (i) to
hold any information regarding this Agreement and the Transaction in strict
confidence, and (ii) not to divulge any such information to any third person,
until such time as the Transaction has been publicly disclosed by the parties.
9. MISCELLANEOUS.
9.1 SEVERABILITY. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
9.2 BINDING EFFECT AND ASSIGNMENT. This Agreement
and all of the provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns,
but, except as otherwise specifically provided herein, neither this Agreement
nor any of the rights, interests or obligations of the parties hereto may be
assigned by either of the parties without the prior written consent of the
other. No such prior consent shall be required with respect to any assignment of
the Shares to a wholly owned subsidiary of Stockholder, provided that the
assignee subsidiary agrees in writing to be bound by the terms of this Agreement
with the same force and effect as if it were Stockholder and executes and
delivers to Parent an irrevocable Proxy in substantially the same form as
executed by Stockholder pursuant to this Agreement. This Agreement is binding
upon Stockholder in Stockholder's capacity as a stockholder of Company (and not
in Stockholder's capacity as a director or officer, as the case may be, of
Company) and only with respect to the specific matters set forth herein.
9.3 AMENDMENT AND MODIFICATION. This Agreement may
not be modified, amended, altered or supplemented except by the execution and
delivery of a written agreement executed by the parties hereto.
9.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The
parties hereto acknowledge that Parent will be irreparably harmed and that there
will be no adequate remedy at law for a violation of any of the covenants or
agreements of Stockholder set forth herein.
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Therefore, it is agreed that, in addition to any other remedies that may be
available to Parent or Merger Sub upon any such violation, Parent and Merger Sub
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent or
Merger Sub at law or in equity and the Stockholder hereby waives any and all
defenses which could exist in its favor in connection with such enforcement and
waives any requirement for the security or posting of any bond in connection
with such enforcement.
9.5 NOTICES. All notices, requests, demands or other
communications that are required or may be given pursuant to the terms of this
Stockholder Agreement shall be in writing and shall be deemed to have been duly
given if delivered by hand or mailed by registered or certified mail, postage
prepaid, as follows:
(a) If to the Stockholder, at the
address set forth below the Stockholder's signature at the end hereof.
(b) if to Parent or Merger Sub, to:
Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Senior Vice President, Legal and
Government Affairs
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(c) if to Company, to:
Aironet Wireless Communications, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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with a copy to:
Day, Xxxxx & Xxxxxx LLP
City Place I
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
and
Xxxxxxx Xxxxx Xxxxxx LLP
000 Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq. and Xxx X.
Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
9.6 GOVERNING LAW. This Amendment shall be
governed by, construed and enforced in accordance with the laws of the State of
Delaware.
9.7 ENTIRE AGREEMENT. This Agreement and the
Proxy contain the entire understanding of the parties in respect of the subject
matter hereof, and supersede all prior negotiations and understandings between
the parties with respect to such subject matter.
9.8 COUNTERPART. This Agreement may be executed
in several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
9.9 EFFECT OF HEADINGS. The section headings
herein are for convenience only and shall not affect the construction or
interpretation of this Agreement.
[Signature page follows.]
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[SIGNATURE PAGE TO STOCKHOLDER AGREEMENT]
IN WITNESS WHEREOF, the parties have caused this Stockholder Agreement
to be executed as of the date first above written.
CISCO SYSTEMS, INC. STOCKHOLDER:
------------
TELXON CORPORATION
By: /s/ Xxxxx Xxxxxx By: /s/ XXXX X. XXXXXX, XX.
------------------------------ --------------------------------
Name: Name: Xxxx X. Xxxxxx, Xx.
----------------------------- Title Chairman and CEO
Title:
Address: 0000 X. Xxxxxx Xxxxxx
Xxxxx, XX 00000
OSPREY ACQUISITION CORPORATION
By: /s/ Xxxxx Xxxxxx
------------------------------
Name:
-----------------------------
Title:
----------------------------
Total Number of Shares of Company Capital Stock owned on the date hereof:
Common Stock:
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[SIGNATURE PAGE TO STOCKHOLDER AGREEMENT]
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IRREVOCABLE PROXY
TO VOTE STOCK OF
AIRONET WIRELESS COMMUNCIATIONS, INC.
The undersigned stockholder of Aironet Wireless
Communications, Inc., a Delaware corporation ("Company"), hereby irrevocably (to
the full extent permitted by the Delaware General Corporation Law) appoints the
members of the Board of Directors of Cisco Systems, Inc., a California
corporation ("Parent"), and each of them, or any other designee of Parent, as
the sole and exclusive attorneys and proxies of the undersigned, with full power
of substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Irrevocable Proxy. The Shares beneficially owned by the undersigned
stockholder of Company as of the date of this Irrevocable Proxy are listed on
the final page of this Irrevocable Proxy. Upon the undersigned's execution of
this Irrevocable Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant
any subsequent proxies with respect to the Shares until after the Expiration
Date (as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided
in the Delaware Corporations Code), is coupled with an interest, including, but
not limited to, that certain Stockholder Agreement dated as of even date
herewith by and among Parent, Osprey Acquisition Corporation and the
undersigned, and is granted in consideration of Parent entering into that
certain Agreement and Plan of Merger and Reorganization between Company, Parent
and Merger Sub (the "Reorganization Agreement"), which agreement provides for
the merger of Merger Sub with and into Company (the "Merger"). As used herein,
the term "Expiration Date" shall mean the earlier to occur of (i) such date and
time as the Merger shall become effective in accordance with the terms and
provisions of the Reorganization Agreement, and (ii) the date of termination of
the Reorganization Agreement. This Irrevocable Proxy shall terminate on the
Expiration Date.
The attorneys and proxies named above, and each of them are
hereby authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to vote the
Shares, and to exercise all voting and other rights of the undersigned with
respect to the Shares (including, without limitation, the power to execute and
deliver written consents pursuant to the Delaware Corporations Code), at every
annual, special or adjourned meeting of the stockholders of Company and in every
written consent in lieu of such meeting as follows:
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|X| In favor of approval of the Merger and the
Reorganization Agreement, in favor of any matter that
could reasonably be expected to facilitate the Merger
and against any proposal for any recapitalization,
merger, sale of assets or other business combination
relating to the Company (other than the Merger) and
against any other action or agreement that would
result in a breach of any covenant, representation or
warranty or any other obligation or agreement of
Company under an acquisition agreement in respect of
the Merger or which would result in any of the
conditions to the completion of the Merger not being
fulfilled.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The undersigned
stockholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or
incapacity of the undersigned and any obligation of the undersigned hereunder
shall be binding upon the heirs, personal representatives, successors and
assigns of the undersigned.
[Signature page follows.]
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This Irrevocable Proxy is coupled with an interest as
aforesaid and is irrevocable.
Dated: November 8, 1999
TELXON CORPORATION
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
----------------------------------
Title: Chairman and CEO
---------------------------------
Shares beneficially owned:
4,994,262 shares of Company Common Stock
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JOINDER TO STOCKHOLDER AGREEMENT
(THE RETAIL TECHNOLOGY GROUP, INC.)
THIS JOINDER TO STOCKHOLDER AGREEMENT is made as of November 8, 1999,
by The Retail Technology Group, Inc. ("Assignee"), a wholly-owned subsidiary of
Telxon Corporation ("Assignor"), with respect to the Stockholder Agreement (the
"Stockholder Agreement"), dated as of November 8, 1999, between Cisco Systems,
Inc., a California corporation ("Parent"), Osprey Acquisition Corporation, a
Delaware corporation and wholly-owned subsidiary of Parent ("Merger Sub"), and
Assignor.
RECITALS:
WHEREAS, pursuant to an Agreement and Plan of Merger and Reorganization
(such agreement, as it may be amended or restated, is hereinafter referred to as
the "Reorganization Agreement"), dated as of November 8, 1999, by and among
Parent, Merger Sub, and Aironet Wireless Communications, Inc., a corporation
existing under the laws of Delaware ("Company"), Parent has agreed to acquire
the outstanding securities of Company pursuant to a statutory merger of Merger
Sub with and into Company (the "Merger") effected in part through the conversion
of each outstanding share of capital stock of Company (the "Company Capital
Stock"), into shares of common stock of Parent (the "Parent Shares") at the rate
set forth in the Reorganization Agreement (the "Transaction");
WHEREAS, in order to induce Parent to enter into the Transaction,
Company has agreed to use its best efforts to solicit the proxy of certain
stockholders of Company on behalf of Parent, and to cause certain stockholders
of Company to execute and deliver Stockholder Agreements to Parent;
WHEREAS, as of the time of the entry of the parties into the
Reorganization Agreement, Assignor owned of record 4,994,262 shares of the
outstanding Company Capital Stock (the "Shares");
WHEREAS, in order to induce Parent to enter into the Transaction,
Assignor entered into the Stockholder Agreement, under which Assignor, among
other things, agreed not to transfer or otherwise dispose of any of the Shares,
or any other shares of Company Capital Stock acquired by such stockholder prior
to the Expiration Date (as defined in Section 1.1 of the Stockholder Agreement),
and also agreed to vote the Shares and any other such shares of Company Capital
Stock so as to facilitate consummation of the Transaction;
WHEREAS, Section 9.2 of the Stockholder Agreement permits Assignor to
assign the Shares to a wholly-owned subsidiary of Assignor without the necessity
of obtaining the consent generally required to be obtained under the terms of
said Section 9.2 from the other parties to the Stockholder Agreement, provided
that the assignee subsidiary agrees in writing to be bound by the terms of the
Stockholder Agreement with the same force and effect as if it were Assignor and
executes and delivers to Parent an Irrevocable Proxy in substantially the same
form as executed by Assignor pursuant to the Stockholder Agreement; and
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WHEREAS, Assignor desires to assign the Shares to Assignee as permitted
by Section 9.2 of the Stockholder Agreement.
NOW, THEREFORE, in satisfaction of the requirements of Section 9.2 of
the Stockholder Agreement in order to permit the transfer of the Shares to
Assignee without the necessity of obtaining the consent of the other parties to
the Stockholder Agreement to such transfer, Assignee agrees as follows:
1. Assignee shall be bound by the terms of the Stockholder Agreement
with the same force and effect as if it were Assignor.
2. Assignee agrees to execute and deliver, and contemporaneously is
delivering, a duly executed Irrevocable Proxy in substantially the same form as
executed by Assignor pursuant to the Stockholder Agreement.
IN WITNESS WHEREOF, the parties have caused this Joinder to Stockholder
Agreement to be executed as of the date first above written.
ASSIGNEE:
THE RETAIL TECHNOLOGY
GROUP, INC.
By: /s/ Xxxxx X. XxXxx
-----------------------------
Xxxxx X. XxXxx
Vice President and
Chief Financial Officer
Address: c/o Telxon Corporation
0000 X. Xxxxxx Xxxxxx
Xxxxx, XX 00000
Total Number of Shares of Company Capital Stock owned by Assignee upon
consummation of the transfer:
Common Stock: 4,994,262 shares
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IRREVOCABLE PROXY
TO VOTE STOCK OF
AIRONET WIRELESS COMMUNCIATIONS, INC.
The undersigned stockholder of Aironet Wireless Communications, Inc., a
Delaware corporation ("Company"), hereby irrevocably (to the full extent
permitted by the Delaware General Corporation Law) appoints the members of the
Board of Directors of Cisco Systems, Inc., a California corporation ("Parent"),
and each of them, or any other designee of Parent, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of Company that now are or hereafter may be beneficially
owned by the undersigned, and any and all other shares or securities of Company
issued or issuable in respect thereof on or after the date hereof (collectively,
the "Shares") in accordance with the terms of this Irrevocable Proxy. The Shares
beneficially owned by the undersigned stockholder of Company as of the date of
this Irrevocable Proxy are listed on the final page of this Irrevocable Proxy.
Upon the undersigned's execution of this Irrevocable Proxy, any and all prior
proxies given by the undersigned with respect to any Shares are hereby revoked
and the undersigned agrees not to grant any subsequent proxies with respect to
the Shares until after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided in the
Delaware Corporations Code), is coupled with an interest, including, but not
limited to, that certain Stockholder Agreement dated as of even date herewith by
and among Parent, Osprey Acquisition Corporation and the undersigned, and is
granted in consideration of Parent entering into that certain Agreement and Plan
of Merger and Reorganization between Company, Parent and Merger Sub (the
"Reorganization Agreement"), which agreement provides for the merger of Merger
Sub with and into Company (the "Merger"). As used herein, the term "Expiration
Date" shall mean the earlier to occur of (i) such date and time as the Merger
shall become effective in accordance with the terms and provisions of the
Reorganization Agreement, and (ii) the date of termination of the Reorganization
Agreement. This Irrevocable Proxy shall terminate on the Expiration Date.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents pursuant to the Delaware Corporations Code), at every annual, special
or adjourned meeting of the stockholders of Company and in every written consent
in lieu of such meeting as follows:
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|X| In favor of approval of the Merger and the Reorganization
Agreement, in favor of any matter that could reasonably be
expected to facilitate the Merger and against any proposal for
any recapitalization, merger, sale of assets or other business
combination relating to the Company (other than the Merger)
and against any other action or agreement that would result in
a breach of any covenant, representation or warranty or any
other obligation or agreement of Company under an acquisition
agreement in respect of the Merger or which would result in
any of the conditions to the completion of the Merger not
being fulfilled.
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided above. The undersigned stockholder
may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of
the undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
[Signature page follows.]
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This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: November 8, 1999
THE RETAIL TECHNOLOGY
GROUP, INC.
By: /s/ Xxxxx X. XxXxx
------------------------------------
Xxxxx X. XxXxx
Vice President and
Chief Financial Officer
Shares beneficially owned:
4,994,262 shares of Company Common Stock
