EXHIBIT 1.2
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.
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.
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, 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. 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
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.]
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: Title Chairman and CEO
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: ________________
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:
(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.]
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
