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EXHIBIT 2
EXECUTION COPY
STOCKHOLDER AGREEMENT
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 the undersigned
stockholder ("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 between 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.
(b) Stockholder agrees not to transfer (except 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 any matter that could reasonably be expected to
facilitate the Transaction 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.
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 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. 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 is competent 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, 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.
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5. Additional Documents. Stockholder hereby covenants and agrees
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent, 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. Stockholder 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 Parent.
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. 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. 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
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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
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
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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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IN WITNESS WHEREOF, the parties have caused this Stockholder Agreement
to be executed as of the date first above written.
CISCO SYSTEMS, INC. STOCKHOLDER
By:
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(Signature)
Name:
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(Print Name)
Title:
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(Print Address)
OSPREY ACQUISITION CORPORATION
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(Print Address)
By:
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Name: (Print Telephone Number)
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Title:
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(Social Security or Tax I.D. Number)
Total Number of Shares of Company Capital Stock owned on the date hereof:
Common Stock:
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[SIGNATURE PAGE TO JOINDER AGREEMENT]
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EXHIBIT A
IRREVOCABLE PROXY
TO VOTE STOCK OF
AIRONET WIRELESS COMMUNICATIONS, 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
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(Signature of Stockholder)
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(Print Name of Stockholder)
Shares beneficially owned:
_________ shares of Company Common Stock
