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Exhibit 10.14.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
March 31, 1998 by and among Aironet Wireless Communications, Inc., a Delaware
corporation with its principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(the "Company"), and each of the undersigned (the "Security Holders").
WHEREAS, certain of the Security Holders (the "Investors") and the
Company have entered into a Subscription Agreement dated March 31, 1998 (the
"Subscription Agreement"), pursuant to which the Investors have acquired shares
of the Company's Common Stock, par value $.01 per share ("Common"), and warrants
to purchase shares of Common ("Warrants"); and
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the transactions contemplated by the Subscription Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements made herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. CERTAIN DEFINITIONS. In addition to terms defined elsewhere in this
Agreement, the following terms shall have the following respective meanings:
"COMMISSION" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act and the Exchange Act.
"CONTINUING DIRECTORS" shall mean and include 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.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar successor federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
"HOLDER" shall mean a record holder of Registrable Securities, and its
successors and assigns.
A "HOSTILE CHANGE IN CONTROL" is deemed to have occurred 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
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Directors. 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
Exchange Act), directly or indirectly, of fifteen percent (15%) or more of the
combined voting power of Voting Securities of Telxon Corporation ("Telxon"), 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.
"IPO" shall mean the first firm commitment underwritten public offering
of the Common (or units which include the Common 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
Company under the Securities Act, pursuant to which the Company receives
proceeds, net of underwriting discounts, commissions and other expenses of the
offering, of not less than Eight Million Dollars ($8,000,000).
"NASD" shall mean the National Association of Securities Dealers, Inc.
"OPTIONS" shall mean options which have been granted on or prior to the
date hereof under the Aironet Wireless Communications, Inc. 1996 Employee Stock
Option Plan.
"PERSON" shall mean and include 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.
"REGISTER" shall mean to register securities for offer and sale under
the Securities Act.
"REGISTRABLE SECURITIES" shall mean: (i) shares of the Common owned of
record on the date of this Agreement, whether by the Investors or any other
Holder; (ii) shares of the Common issued upon the exercise of the Options, or
upon the exercise of the Warrants owned of record on the date of this Agreement,
whether by the Investors or any other Holder; and (iii) any other securities
issued with respect to any shares described in clauses (i) and (ii) by way of a
stock dividend, stock split, distribution, reclassification, combination,
exchange, recapitalization, or otherwise; provided, however, that Registrable
Securities shall not include any securities which have previously been
Registered or which have previously been sold under Rule 144, and with respect
to an IPO, Registrable Securities shall not include any securities which are not
of a class then being offered for sale by the Company in the IPO.
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"REGISTRATION" shall mean the registration of securities under the
Securities Act.
"REGISTRATION STATEMENT" shall mean a registration statement under the
Securities Act.
"RULE 144" means Rule 144 promulgated under the Securities Act and any
successor or complementary rules thereto.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"SPIN-OFF" shall mean any spin-off, dividend or other distribution of
Registrable Securities by Telxon to its stockholders.
"VOTING SECURITIES" shall mean the Common Stock, par value $0.01 per
share, of Telxon and any and all other then outstanding Telxon securities
ordinarily having the right to vote generally in the election of the Telxon
directors.
2. DEMAND REGISTRATION.
2.1 After the earlier of (i) the first anniversary of the date of this
Agreement, (ii) the consummation of an IPO or (iii) a Spin-Off or Hostile Change
in Control at any time, Holders of at least fifty percent (50%) of all
Registrable Securities then held by parties to this Agreement (or in the case of
a Spin-Off the percentage of Registrable Securities equal to the proportion
which the majority of the number shares of Common acquired pursuant to the
Subscription Agreement bears to all Registrable Securities at the time of the
Spin-Off) may request the Company to Register any or all of their Registrable
Securities (a "Demand Notice"). Demand Notices shall be made in writing and
shall specify the Holders making the Demand Notice, the number and type of
Registrable Securities that each requests to be Registered, whether the
Registrable Securities will be sold through an underwriter, and if so, the
underwriters name, address, telephone number and contact person. The Company
will prepare and file a Registration Statement in accordance with Section 4 for
the Registrable Securities to be Registered pursuant to a valid Demand Notice;
provided that the Company shall not be required to prepare or file a
Registration Statement under this Section 2 more than once in any twelve (12)
month period, more than twice after an IPO or more than three (3) times in
total. Registrations pursuant to Demand Notices are subject to the further
limitations set forth in Section 2.3.
2.2 Within ten (10) days from its receipt of a valid Demand Notice, the
Company shall deliver written notice to all Holders that, pursuant to a Demand
Notice, the Company will prepare and file a Registration Statement. Any Holder
who was not a party to the Demand Notice may, within ten (10) days from receipt
of the Company's notice, request the Company to include the Holder's Registrable
Securities in the Registration Statement. If the Holders that initiated a Demand
Notice specify therein that they intend to distribute their Registrable
Securities through
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an underwriter, then each Holder that requests inclusion in the Registration
Statement must participate in such underwriting, and become party to any
required agreements, including, but not limited to, customary underwriting and
indemnification agreements. The Company shall have the right to approve any
underwriter, which approval shall not be unreasonably withheld. In the event
that the underwriter limits the number of Registrable Securities to be included
in the offering to fewer than the number that has been requested for
Registration, then each Holder's Registrable Securities shall be included in the
underwriting pro rata, based on the total number of Registrable Securities held
by the participating Holders.
2.3 Registrations under this Section 2 are subject to the following
limitations: (i) the Company need not prepare or file a Registration Statement
pursuant to a Demand Notice within one hundred eighty (180) days after the
effective date of any Registration Statement filed by the Company in which the
Holders party to the Demand Notice could have included their Registrable
Securities; (ii) the Company may delay the effectiveness of a Demand Notice for
a period of not more than six months after receipt of a Demand Notice in any
12-month period if the Company furnishes a certificate signed by its president
stating that in the good faith judgment of the Company's board of directors it
would be detrimental to the Company for the Registration Statement to be
effected at such time; and (iii) the Company need not prepare or file a
Registration Statement pursuant to a Demand Notice if it is then preparing a
Registration Statement in connection with an underwritten public offering of
Company securities, and the Company may delay the effectiveness of such Demand
Notice until one hundred eighty (180) days after the effective date of such
Registration Statement.
3. INCIDENTAL REGISTRATION. Each time the Company determines to proceed
to Register any of its securities (other than a Registration pursuant to a
Demand Notice or on Forms ▇-▇, ▇-▇ or other limited purpose form), it will give
written notice of its intention to do so to each Holder. Upon the written
request of any Holder given within twenty (20) days after receipt by the Holder
of the Company's notice, the Company will use reasonable efforts to cause all
the Registrable Securities of the requesting Holders to be included in the
Registration Statement. If the Registration is for an underwritten offering,
then each Holder that requests inclusion in the Registration Statement must
participate in the underwriting if required by the Company and may participate
in the underwriting if the Holder timely requests in writing, and shall in
either such event become a party to any required agreements, including, but not
limited to, customary indemnification agreements. In the event that the
underwriter limits the number of Registrable Securities of requesting Holders as
a group to fewer than the number that has been requested for Registration
pursuant to this Section 3, then each Holder's Registrable Securities included
in the underwriting shall be reduced pro rata, based on the total number of
Registrable Securities held by the participating Holders. Notwithstanding the
foregoing, nothing in this Agreement to the contrary shall prevent the Company
from, at any time, abandoning or delaying a Registration Statement under this
Section 3.
4. REGISTRATION ON FORM S-2 OR FORM S-3.
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4.1 The Company shall use its best efforts to qualify for the
use of Form S-2 and Form S-3 or any comparable or successor form or
forms of the Commission; and to that end the Company shall register
(whether or not required by law to do so) the Registrable Securities
under the Exchange Act, in accordance with the provisions of the
Exchange Act following the effective date of the first registration of
any securities of the Company on Form S-1. After the Company has
qualified for the use of either Form S-2 or Form S-3, or both, in
addition to the rights contained in the Sections 2 and 3, the Holders
shall have the right to request registrations on Form S-2 or Form S-3
(by written request stating the number of shares of Registrable
Securities to be disposed of and the intended method of disposition of
such shares by such Holder or Holders).
4.2 Registrations under this Section 4 are subject to the
following limitations: (i) the Company need not prepare or file a
Registration Statement within ninety (90) days after the effective date
of any Registration Statement filed by the Company in which the Holders
requesting Registration under this Section 4 could have included all of
their Registrable Securities; (ii) the Company may delay the
effectiveness of a request for Registration under this Section 4 for a
period of not more than ninety (90) days after receipt of a Holder's
request for Registration, in any twelve (12) month period if the
Company furnishes a certificate signed by its president stating that in
the good faith judgment of the Company's board of directors it would be
detrimental to the Company for the Registration Statement to be
effected at such time; and (iii) the Company need not prepare or file a
Registration Statement pursuant to this Section 4 if it is then
preparing a Registration Statement in connection with an underwritten
public offering of Company securities, and the Company may delay the
effectiveness of a request for Registration under this Section 4 until
one ninety (90) days after the effective date of such Registration
Statement, if so required by the underwriter for such offering.
4.3 Upon a request for Registration under this Section 4, the
Company shall give notice to each Holder of its receipt of such
request. Upon the written request of any Holder given within twenty
(20) days after receipt by the Holder of the Company's notice, the
Company will use reasonable efforts to cause all the Registrable
Securities of the requesting Holders to be included in the Registration
Statement. Subject to the foregoing, the Company will use its best
efforts to effect promptly the registration of all shares of
Registrable Securities on Form S-2 or Form S-3 to the extent requested
by the Holder or Holders thereof for purposes of disposition.
5. REGISTRATION PROCEDURES. If and whenever the Company is required by
this Agreement to Register any Registrable Securities, the Company will:
5.1 use reasonable efforts to prepare and file with the Commission a
Registration Statement with respect to such securities and to cause such
registration statement to become and remain effective until completion of the
proposed offering, but no longer than nine (9) months;
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5.2 prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus forming a part
thereof as may be necessary to keep the Registration Statement effective until
completion of the proposed offering, but no longer than nine (9) months;
5.3 furnish to each selling Holder and the underwriters, if any, a
reasonable number of copies of the Registration Statement, the preliminary
prospectus, prospectus and such other documents as may reasonably be required in
order to facilitate the public sale or other disposition of the securities owned
by such selling Holder;
5.4 use reasonable efforts to register or qualify the securities
covered by the Registration Statement under all state securities laws as each
selling Holder reasonably requests; provided, however, that the Company shall
not be required to qualify or register the securities, or take any other action,
if to do so would require the Company to qualify as a foreign corporation in any
in which it is not then qualified, or subject it to taxation or general service
of process in any state in which it is not then taxed or subject to service of
process;
5.5 within a reasonable time before each filing with the Commission of
a Registration Statement or prospectus, or amendments or supplements thereto,
furnish to counsel selected by the selling Holders copies of such documents,
which shall be subject to the reasonable approval of such counsel, which if not
promptly objected to shall be deemed approved;
5.6 notify each selling Holder, promptly after it shall receive notice
thereof, of the time when the Registration Statement has become effective or a
supplement to any prospectus forming a part of such registration statement has
been filed;
5.7 notify each selling Holder promptly of any request by the
Commission for the amending or supplementing of the Registration Statement or
prospectus or for additional information;
5.8 prepare and promptly file with the Commission, upon the request of
a selling Holder, any amendments or supplements to the Registration Statement or
prospectus which, in the opinion of counsel for the Company, is required under
the Securities Act to permit the distribution of the Registered securities by
the selling Holder(s);
5.9 prepare and promptly file with the Commission, and promptly notify
each selling Holder as to, such amendments and supplements to such Registration
Statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities is
required to be delivered under the Securities Act, any event shall have occurred
as a result of which the prospectus then in effect would include an untrue
statement of a material fact or fail to state any material fact necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading;
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5.10 advise each selling Holder, promptly after the Company receives
notice or obtains knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of the Registration Statement or the
initiation or threat by the Commission of any proceeding for that purpose, and
the Company shall promptly use reasonable efforts to prevent the issuance of any
stop order, if such stop order should be issued, to obtain its withdrawal;
5.11 not file any amendment or supplement to such registration
statement or prospectus to which a selling Holder shall have reasonably objected
in writing on grounds that such amendment or supplement does not comply in all
material respects with the requirements of the Securities Act, provided that the
Company has been furnished with a copy of the objection reasonably in advance of
the intended filing, unless in the opinion of counsel for the Company the filing
of such amendment or supplement is reasonably necessary to protect the Company
from any liabilities under any applicable federal or state law; and
5.12 furnish to each selling Holder a legal opinion of counsel for the
Company, dated the effective date of the Registration Statement, and a "comfort"
letter from the independent public accountants who have certified the Company's
financial statements included in the Registration Statement, if reasonably
required by the selling Holder to sell the Registered securities.
6. LISTING. In connection with an IPO, the Company will use reasonable
efforts to cause the Registered securities to be listed on a securities exchange
or quoted on the Nasdaq Stock Market quotation system; and for all other
Registrable Securities which have been Registered under Section 2 or under
Section 3, if the Company's securities of the same type as the Registrable
Securities are listed on a securities exchange or quoted on the Nasdaq Stock
Market quotation system, then the Company will use reasonable efforts to cause
any Registrable Securities Registered under Section 2 or under Section 3 to also
be listed.
7. EXPENSES. The Company shall bear all fees, costs and expenses of any
Registration Statement prepared hereunder, including but not limited to all
registration, filing and NASD fees, printing expenses, fees and disbursements of
counsel and accountants for the Company, and all legal fees of the Company and
of one (1) attorney hired to represent the Holders as a group, and disbursements
and other expenses of the Company incurred in connection with its complying with
state securities or blue sky laws of any jurisdictions in which the securities
to be offered are to be registered or qualified, except that underwriting
discounts, commissions, transfer taxes and legal fees for the selling Holders
(other than a single attorney as set forth in this Section 7) shall be borne by
such Holder(s).
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8. INDEMNIFICATION.
8.1 The Company will defend, indemnify and hold harmless each selling
Holder, each of its officers, directors and partners, and each person, if any,
who controls such selling Holder, and each underwriter (if any) from and against
any and all loss, damage, liability, cost and expense to which a selling Holder
or any such controlling person may become subject under the Securities Act or
otherwise, to the extent arising out of or based on any untrue statement (or
alleged untrue statement) of any material fact contained in a Registration
Statement, any prospectus contained therein or any amendment or supplement
thereto, or arising out of or are based upon the omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, damage, liability, cost or
expense arises out of or is based upon an untrue statement or omission so made
in conformity with information furnished to the Company by such selling Holder,
such a controlling person, or such underwriter, and stated to be specifically
for use therein.
8.2 Each selling Holder will defend, indemnify and hold harmless the
Company and each other selling Holder and each person, if any, who controls the
Company or a selling Holder from and against any and all loss, damage,
liability, cost and expense to which the Company or such selling Holder or
controlling person may become subject under the Securities Act or otherwise, to
the extent arising out of or based on any untrue statement (or alleged untrue
statement) of any material fact contained in a Registration Statement, any
prospectus contained therein or any amendment or supplement thereto, or arise
out of or are based upon the omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
to the extent, but only to the extent, that any such loss, damage, liability,
cost or expense arises out of or is based upon an untrue statement or omission
made in reliance upon and in conformity with written information furnished to
the Company by the selling Holder. A Holder's indemnification obligation under
this Section 8.2 shall be limited to such Holders proceeds from the sale of its
Registrable Securities under the subject Registration Statement.
8.3. NOTICE; DEFENSE OF CLAIMS. Promptly after receipt by an
indemnified party of notice of any claim, liability or expense to which the
indemnification obligations set forth in Sections 8.1 or 8.2 would apply, the
indemnified party shall give notice thereof in writing to the indemnifying
party. Such notice shall state the information then available regarding the
amount and nature of such claim, liability or expense. If within twenty (20)
days after receiving such notice the indemnifying party gives written notice to
the indemnified party stating that (a) it would be liable under the provisions
hereof for indemnity in the amount of such claim if such claim were successful
and (b) that it disputes and intends to defend against such claim, liability or
expense at its own cost and expense, then counsel for the defense shall be
selected by the indemnifying party (subject to the consent of the indemnified
party, which consent shall not be unreasonably withheld or delayed), and the
indemnified party shall not be required to make any payment with respect to
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such claim, liability or expense as long as the indemnifying party is conducting
a good faith and diligent defense at its own expense. The indemnifying party
shall have the right, with the consent of the indemnified party, which consent
shall not be unreasonably withheld or delayed, to settle all indemnifiable
matters related to claims by third parties which are susceptible to being
settled, provided its obligation to indemnify the indemnifying party therefor
will be fully satisfied. The indemnifying party shall keep the indemnified party
appraised of the status of the claim, liability or expense and any resulting
suit, proceeding or enforcement action, shall furnish the indemnified party with
all documents and information that the indemnified party shall reasonably
request and shall consult with the indemnified party prior to acting on major
matters, including settlement discussions. The indemnified party shall make
available to the indemnifying party all information and assistance that the
indemnifying party may reasonably request and shall cooperate with the
indemnifying party in any defense undertaken by it pursuant to this Section 8.
Notwithstanding anything herein to the contrary, the indemnified party shall at
all times have the right to fully participate in such defense at its own expense
directly or through counsel; provided, however, if the named parties to the
action or proceeding include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate under applicable standards of professional conduct, the expense of
separate counsel for the indemnified party shall be paid by the indemnifying
party. If no such notice of intent to dispute and defend is given by the
indemnifying party, or if such diligent good faith defense is not being or
ceases to be conducted, the indemnified party may, at the expense of the
indemnifying party, undertake the defense of (with counsel selected by the
indemnified party), and shall have the right to compromise or settle (exercising
reasonable business judgment), such claim, liability or expense.
9. COMPLIANCE WITH RULE 144. From the first date that the Company is
required to file any reports under Section 13 or 15(d) of the Exchange Act, and
until the Holders as a group shall own less than an aggregate of ten percent
(10%) of any class or series of equity securities of the Company, the Company
shall comply with the public information requirements which are conditions to
the availability of Rule 144 for the sale of Registrable Securities. Company
shall cooperate with the Holders in supplying such information as may be
necessary for them to complete and file any information reporting forms
presently or hereafter required by the Commission as a condition to the
availability of Rule 144 with respect to the Holders and such Registrable
Securities.
10. AMENDMENTS; WAIVER. The provisions of this Agreement may be amended
and waived pursuant to a written agreement executed by the Company and Holders
holding ninety five percent (95%) or more of the then issued and outstanding
Registrable Securities, provided that any amendment or waiver that treats a
Holder differently than other Holders must be consented to by such Holders.
11. TRANSFERABILITY OF REGISTRATION RIGHTS. A transferee acquiring
Registrable Securities may succeed to the rights and obligations under this
Agreement appurtenant to the Registrable Securities if, but only if, such
transferee acquires a minimum of fifty thousand (50,000) shares of
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Registrable Securities in a single transaction, is not a direct competitor of
the Company or of Telxon Corporation (if Telxon Corporation then owns twenty
percent (20%) or more of the issued and outstanding capital stock of the
Company) and the transferee becomes a signatory hereto. The original signatory
and any immediate or subsequent transferee which becomes a party hereto shall
retain the rights and obligations under this Agreement with respect to those
Registrable Securities which it remains record owner.
12. MISCELLANEOUS.
12.1 GOVERNING LAW; JURISDICTION. This Agreement shall be construed
under and governed by the laws of the State of Ohio, without regards to conflict
or choice of laws, statutes, regulations, rules or principles. Any action
relating to the execution or performance of this Agreement shall 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.
12.2 NOTICES. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given upon receipt, or if delivered or sent by facsimile transmission, upon
confirmation of transmission, or if sent by overnight courier, the second day
after deposit, as follows:
TO THE HOLDERS: To the respective addresses set forth
in the stock records of the Company
with a copy to: A legal counsel designated by
a majority of the Holders
TO THE COMPANY Aironet Wireless Communications, Inc.
at the address set forth at the
beginning of this Agreement.
Attn: President
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇/▇▇▇ ▇. ▇▇▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address of which any party may notify the other parties
provided in accordance with this Section 12.2.
12.3 PRIOR AGREEMENTS SUPERSEDED. This Agreement supersedes all prior
and
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contemporaneous understandings and agreements, written or oral, between or among
the parties relating to the subject matter hereof.
12.4 ASSIGNABILITY. Except as set forth in Section 11, this Agreement
may not be assigned, and no right or obligation herein may be assigned or
delegated, without the written consent of the Company, and absent such consent
any such assignment or delegation shall be void and of no effect. Subject to the
foregoing, this Agreement shall be binding upon and enforceable by, and shall
inure to the benefit of, the parties hereto and their respective permitted
successors and assigns. Nothing in this Agreement is intended to give any person
not named herein the benefit of any legal or equitable right, remedy or claim
under this Agreement, except as expressly provided herein.
12.5 CAPTIONS AND GENDER. The captions in this Agreement are for
convenience only and shall not affect the construction or interpretation of any
term or provision hereof. The use in this Agreement of the masculine, feminine
or neuter pronoun, shall include the others as the context may require.
12.6 EXECUTION IN COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same document. An executed
faxed counterpart of this Agreement shall be binding on the parties, and for
evidentiary purposes shall be deemed to be an original.
12.7 SEVERABILITY. In case any of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had been limited or modified
(consistent with its general intent) to the extent necessary to make it valid,
legal and enforceable, or if it shall not be possible to so limit or modify such
invalid, illegal or unenforceable provision or part of a provision, this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision or part of a provision had never been contained in this Agreement, so
long as to do so would not materially alter the rights or obligations of the
parties taken as a whole.
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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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
HOLDERS, INDIVIDUALS: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
13
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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
TELXON: TELXON CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
and Chief Financial Officer
14
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its:______________________________________
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
By:_______________________________________
Its:______________________________________
TELANTIS VENTURE PARTNERS V, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Treasurer
W, A & H INVESTMENTS LLC
By: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Group, L.L.C.,
its managing member
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇, CEO/Managing Director
▇▇▇▇▇▇▇▇ & COMPANY SECURITIES, INC.
By:______________________________________
Its:______________________________________
CLARION CAPITAL CORPORATION
By: Mart ▇▇▇▇▇
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Its: Chairman
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