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Exhibit 10.10
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of March 31, 1997 (the "Effective Date"), by and between TELXON
CORPORATION, a Delaware corporation ("Telxon"), and TELANTIS CAPITAL, INC., a
Florida corporation ("Purchaser").
WHEREAS, Xxxxxx X. Xxxxxxxx ("Xxxxxxxx") is the sole shareholder of
Purchaser.
WHEREAS, Xxxxxxxx has served Telxon in various capacities since its
founding, and most recently as its Chairman and Chief Executive Officer;
WHEREAS, on February 26, 1997, Xxxxxxxx announced his retirement from
Telxon;
WHEREAS, while serving as an officer of Telxon, Xxxxxxxx instituted an
aggressive program whereby Telxon invested in and acquired various technology
companies, in order to provide Telxon with a competitive technology base and to
enhance the value of Telxon through the appreciation of the value of these
subsidiaries and investments;
WHEREAS, one of these successful investments was Telesystems SLW Inc.,
which has become Telxon's wireless networking subsidiary, Aironet Wireless
Communications, Inc. ("Aironet");
WHEREAS, Telxon's outside Directors determined that it would be in the
best interests of Telxon to permit Xxxxxxxx, at his election, to acquire up to
ten percent (10%) of Telxon's holdings in Aironet, at a per share price equal
to the current fair market value of the purchased shares;
WHEREAS, Xxxxxxxx now desires to purchase, through Purchaser, such
shares of Aironet;
WHEREAS, there were and will be 8,085,000 shares of Aironet Voting
Common Stock issued and outstanding immediately prior to consummating the
transactions contemplated hereunder; and
WHEREAS, the last valuation of Aironet performed by an independent
third party investment banking firm, Xxxxxxxx Xxxxx Xxxxxx & Xxxxx, placed the
fair market value of Aironet's common shares at $1.86 per share.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, covenants and agreements hereinafter
set forth, the parties, intending to be legally and equitably bound, hereby
agree as follows:
1. SALE AND PURCHASE OF SHARES. Subject to the terms and conditions
hereof, Telxon shall sell, transfer and assign to Purchaser, at Purchaser's
Florida address, and Purchaser shall
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purchase and acquire from Telxon, 808,500 shares of Aironet Voting Common Stock
(the "Purchased Shares"), for a purchase price of $1.86 per share for an
aggregate purchase price of $1,503,810 (the "Purchase Price"). The Purchase
Price shall be payable by Purchaser through its delivery to Telxon of a
Promissory Note in the form attached hereto.
2. PURCHASER REPRESENTATIONS AND WARRANTIES.
2.1 Purchaser understands that the Purchased Shares have not
been registered under the Securities Act of 1933, as amended (the
"Securities Act"). Purchaser also understands that the Purchased
Shares are being offered and sold pursuant to exemptions from
registration contained in the Securities Act and applicable state
securities laws based in part upon Purchaser's representations
contained in this Agreement.
2.2 Purchaser understands and agrees that it bears the
economic risk of this investment indefinitely unless and until the
Purchased Shares acquired hereunder are registered pursuant to the
Securities Act, or an exemption from registration is available.
Purchaser understands that Telxon has no present intention of
registering the shares being sold hereunder. Purchaser also
understands that there is no assurance that any exemption from
registration under the Securities Act will be available and that, even
if available, such exemption may not allow Purchaser to transfer all
or any portion of such shares.
2.3 Purchaser is acquiring the Purchased Shares for
Purchaser's own account for investment only, and not with a view
toward their distribution.
2.4 Purchaser represents that by reason of Xxxxxxxx'x
business or financial experience, Purchaser has the capacity to
protect its own interests in connection with the transactions
contemplated in this Agreement and can bear the risk of such
investment without materially impairing its or Xxxxxxxx'x financial
condition. Further, Purchaser is aware of no publication of any
advertisement in connection with the transactions contemplated in this
Agreement.
2.5 As the former Chairman and Chief Executive Officer of
Telxon, Aironet's parent corporation, Xxxxxxxx is fully aware of all
material information relating to Aironet, including its business and
financial affairs, and has had full and free access to all such
information. Xxxxxxxx has had an opportunity to discuss Aironet's
business, management and financial affairs with directors, officers
and management of Aironet and Telxon and has had the opportunity to
review Aironet's operations and facilities. Xxxxxxxx also has had the
opportunity to his satisfaction to ask questions of and receive
answers from Telxon and Aironet and its management regarding the
transactions contemplated hereby.
2.6 Purchaser is an "accredited investor" as that term is
defined in Regulation D under the Securities Act; Xxxxxxxx, its sole
shareholder is a natural person whose net worth, either individually
or jointly with his spouse, at the same time of the Closing (defined
below), exceeds $1,000,000, or is a natural person who had an
individual income in excess of $200,000 or joint income with his
spouse in excess of $300,000 in 1995 and 1996, and reasonably expects
to have individual income reaching the same level
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in 1997. In calculating net worth, Xxxxxxxx may include the estimated
fair market value of the Xxxxxxxx'x principal residence as an asset.
In determining individual "income," Xxxxxxxx should add to Xxxxxxxx'x
individual adjusted gross income (exclusive of any spousal income) any
amounts attributable to tax exempt income received, losses claimed as
a limited partner in any limited partnership, deductions claimed for
depletion, contributions to an XXX or Xxxxx retirement plan, alimony
payments, and any amount by which income from long-term capital gains
has been reduced in arriving at adjusted gross income, and should
subtract any unrealized capital gain.
3. CLOSING. The closing of the transactions contemplated hereunder
(the "Closing") shall be held at such time and place as the parties may agree.
4. CONDITIONS TO TELXON'S OBLIGATIONS. Telxon's obligation to sell the
Purchased Shares at Closing is subject to the satisfaction, on or prior to
Closing, of the following conditions, any one or more of which may be waived by
it:
4.1 The representations and warranties made by Purchaser in
Section 2 hereof shall be true and correct in all material respects at
the date of the Closing, with the same force and effect as if they had
been made on and as of said date, and Purchaser shall have performed
all obligations and conditions herein required to be performed or
observed by him on or prior to Closing; and
4.2 At the time of Closing, the sale of the Purchased Shares
shall be legally permitted by all laws and regulations to which
Purchaser and Telxon are subject.
5. ENTIRE AGREEMENT. This Agreement and any other writing specifically
identified herein or specifically contemplated hereby, taken together, contain
the entire agreement among the parties hereto with respect to Telxon's sale and
Purchaser's acquisition of shares hereunder and supersedes all previous written
or oral negotiations, commitments and writings with respect thereto.
6. HEADINGS. The paragraph headings used herein are for convenience of
reference only and do not form a part hereof and do not in any way modify,
interpret or set forth the intentions of the parties.
7. SURVIVAL. All agreements, obligations, warranties, and
representations under this Agreement shall survive the Closing and any
investigations made by the parties until March 31, 1998.
8. GENDER AND NUMBER. When permitted by the context, each pronoun used
in this Agreement includes the same pronoun in other genders or numbers, and
each noun used in this Agreement, including each capitalized term defined
herein, includes the same noun in other numbers.
9. SUCCESSORS. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by and against the respective heirs, personal
representatives, successors, and
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assigns of each party to this Agreement. Notwithstanding the foregoing, this
Agreement may not be assigned by either party.
10. NO THIRD-PARTY BENEFIT. This Agreement is intended for the
exclusive benefit of the parties to this Agreement and their respective
successors and assigns, and nothing contained in this Agreement shall be
construed as creating any rights or benefits in or to any third party.
11. GOVERNING LAW. All questions concerning the validity or meaning of
this Agreement or relating to the rights and obligations of the parties with
respect to performance under this Agreement shall be construed and resolved
under the laws of the State of Ohio, without regard to conflict of laws
principles.
12. SEVERABILITY. The intention of the parties to this Agreement is to
comply fully with all laws and public policies, and this Agreement shall be
construed consistently with all laws and public policies to the extent
possible. If any court of competent jurisdiction determines that it is
impossible to construe any provision of this Agreement consistently with any
law or public policy and consequently holds that provision to be invalid, such
holding shall in no way effect the validity of the other provisions of this
Agreement, which shall remain in full force and effect.
13. COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all, of the parties hereto.
14. STOCKHOLDERS AGREEMENT. At such time as Aironet and its
stockholders enter into a stockholders agreement, Purchaser will be made a
party to that agreement and the Purchased Shares will be made subject to that
agreement. Until such a stockholders agreement is entered into (but not after),
Purchaser has standard rights to have the Purchased Shares included in any
registration statement filed by Aironet under the Securities Act in connection
with its initial firm commitment underwritten public offering of its common
stock ("IPO"). Further, until an IPO, Purchaser may subscribe for and purchase,
at fair market value and on standard terms and conditions, newly issued shares
of Aironet stock from Aironet, in an amount that prevents Purchaser's holdings
in Aironet to fall below 10% of Aironet's issued and outstanding shares.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
Telxon Corporation
By: /s/ Xxxxxxx X. Xxxxx
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Its: Senior Vice President & Chief
Financial Officer
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Telantis Capital, Inc.
By: /s/ Xxxx Xxxxxxxx
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Its: President
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For the purposes of Section 14 only, Aironet has caused this Agreement
to be duly executed as of the day and year first above written.
Aironet Wireless Communications, Inc.
By: /s/ Xxxxxxx X. Xxxxx
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Its: Treasurer
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