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Exhibit 10.4.1
OWNERSHIP, ENCUMBRANCE, PLEDGE, ASSIGNMENT, TRANSFER, OR OTHER DISPOSITION OF
THE WARRANTS EVIDENCED BY THIS CERTIFICATE, AND ANY SHARES ISSUED UPON THE
EXERCISE HEREOF, ARE SUBJECT TO RESTRICTIONS CONTAINED IN A STOCKHOLDERS
AGREEMENT DATED AND EFFECTIVE AS OF MARCH 31, 1998, BY AND AMONG THE CORPORATION
AND ITS STOCKHOLDERS (THE "STOCKHOLDERS AGREEMENT"), A COPY OF WHICH IS ON FILE
IN THE OFFICE OF THE SECRETARY OF THE CORPORATION.
NEITHER THE WARRANTS EVIDENCED BY THIS CERTIFICATE NOR ANY SHARES ISSUABLE UPON
ITS EXERCISE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT") OR APPLICABLE STATE SECURITIES LAWS ("STATE LAWS") AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT
REGISTERING THE WARRANTS AND/OR SHARES UNDER THE ACT AND STATE LAWS OR (ii) A
TRANSACTION PERMITTED BY RULE 144 OR RULE 145 UNDER THE ACT OR EQUIVALENT STATE
LAWS FOR WHICH THE ISSUER HAS RECEIVED REASONABLY SATISFACTORY EVIDENCE OF
COMPLIANCE WITH THE PROVISIONS OF SUCH APPLICABLE RULE OR (iii) AN OPINION OF
COUNSEL SATISFACTORY TO ISSUER THAT SUCH WARRANTS AND/OR SHARES ARE EXEMPT FROM
THE REGISTRATION PROVISIONS OF THE ACT AND STATE LAWS OR (iv) A NO-ACTION LETTER
FROM THE STAFF OF THE SECURITIES AND EXCHANGE COMMISSION AND THE APPLICABLE
STATE DIVISIONS OF SECURITIES THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT OR
STATE LAWS.
Warrant Certificate No. __ Warrants to Purchase_____ Shares of Common Stock
AIRONET WIRELESS COMMUNICATIONS, INC.
INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE
This certifies that for value received, __________________, or any
permitted transferee ("Holder"), is entitled to purchase from Aironet Wireless
Communications, Inc. ("Aironet") _______ shares (adjusted as provided in Exhibit
A, the "Warrant Shares") of Aironet's Common Stock, $.01 par value ("Common"),
at Three and 50/100 Dollars ($3.50) per share (adjusted as provided in Exhibit
A, the "Warrant Price"), which equals an aggregate purchase price of
___________________________ Dollars ($_________), at or after, and not before,
the consummation of the earlier of either (i) 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 Aironet under the Act, pursuant to which Aironet
receives proceeds, net of underwriting discounts, commissions and other expenses
of the offering, of not less than Eight Million Dollars ($8,000,000) ("IPO");
(ii) the sale of Aironet as an entirety, whether by merger, consolidation, stock
sale, asset sale, or otherwise, for the higher of a gross sale price of Seventy
Five Million Dollars ($75,000,000) or Eight Dollars ($8.00) per share ("Private
Sale"); (iii) a Change in Control (defined in Exhibit A); or (iv) a Spin-Off
(defined in Exhibit A) (the occurrence of an IPO, Private Sale, Change in
Control and/or Spin-Off is referred to herein as the "Exercise Event"). To the
extent remaining un-exercised, these Warrants shall terminate on March 31, 2001,
5:00 P.M., E.T., and thereafter shall entitle Holder to no rights. These
Warrants are subject to the terms and conditions set forth on the face of this
certificate and in Exhibit A attached hereto, which by this reference are
incorporated herein in their entirety.
Aironet Wireless Communications, Inc.
Date:_________________
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
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▇▇▇ ▇. ▇▇▇▇▇▇, Assistant Secretary
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EXHIBIT A
WARRANT TERMS AND CONDITIONS
AIRONET WIRELESS COMMUNICATIONS, INC.
1. TRANSFER. Transfer of the Warrants is restricted as set forth in
the restrictive legends set forth in the Warrant certificate to which this
Exhibit A is attached.
2. EXCHANGE OF WARRANT CERTIFICATE. Upon Holder's written request,
Aironet shall exchange the Warrant certificate for one or more certificates
entitling Holder to purchase a like aggregate number of Warrant Shares. At
Holder's request and upon delivery to Aironet of a Lost Warrant Affidavit and
surety bond reasonably acceptable to Aironet, Aironet will deliver to Holder
replacement Warrant certificates for mutilated, lost, stolen or destroyed
Warrant certificates.
3. EXERCISE OF AND PAYMENT FOR WARRANTS.
a. Exercise. The Warrants shall be deemed to have
been exercised automatically upon the consummation of a Private Sale
for which Aironet has provided the Holder at least fifteen (15) days
prior written notice, and upon Aironet's receipt of a Holder's written
notice of exercise provided to Aironet in the event of an IPO, Change
in Control or Spin-Off at any time prior to their termination as
provided on the face of the Warrant certificate to which this Exhibit A
is attached.
b. Payment of Warrant Price.
i. If the applicable Exercise Event is an IPO,
Change in Control or Spin-Off, then within ten (10) days of
Holder's receipt of written notice from Aironet of the event,
Holder shall pay the aggregate Warrant Price to Aironet by
wire transfer of immediately available funds, pursuant to wire
instructions provided to Holder by Aironet. Immediately upon
Holder's surrender of the Warrant certificate evidencing the
exercised Warrants and payment of the Warrant Price, Aironet
shall issue and deliver to Holder certificates for the Warrant
Shares then purchased. The Warrant Shares when paid for and
issued shall be fully paid and non-assessable, and shall be
deemed issued as of the date of surrender of the Warrant
certificate and payment of the aggregate Warrant Price.
ii. If the applicable Exercise Event is a Private
Sale, then Aironet shall provide Holder with at least fifteen
(15) days written notice prior to consummating such
transaction, and Holder shall receive, on a cashless exercise
basis, the kind and amount of consideration it would be
entitled to receive as if the Warrants had been duly exercised
in full prior to such event and as if Holder owned the number
of Warrant Shares that could be purchased with such
consideration, less the aggregate Warrant Price.
c. Payment of Taxes. Aironet will pay all
documentary stamp taxes, if any, attributable to the initial issuance
and delivery of the Warrant Shares, and Holder will pay all other
taxes, if any.
d. Change in Control. 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 Securities Exchange Act of 1934 (as
amended, the "Exchange Act")), directly or indirectly, of fifteen
percent (15%) or more of the combined voting power of Telxon's Voting
Securities, 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
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to Section 13 or 15(d) of the Exchange Act, or similar successor public
filing. "Continuing Directors" means and includes 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. "Person" means and
includes 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. "Voting Securities" means the Telxon Common Stock,
par value $0.01 per share, and any and all other then outstanding
Telxon securities ordinarily having the right to vote generally in the
election of the Telxon directors.
e. Spin-Off. "Spin-Off" shall mean any spin-off, dividend or
other distribution of Aironet Common by Telxon to its stockholders.
4. RESERVATION OF SHARES. Aironet represents and warrants that it has
reserved, and so long as the Warrants remain outstanding it will keep reserved,
the number of shares of Common which are subject to purchase under the Warrants
from time to time. Prior to its exercise or termination, Aironet will keep a
copy of this Warrant certificate on file with its transfer agent.
5. PRESERVATION OF PURCHASE RIGHTS UPON RECLASSIFICATION,
CONSOLIDATION, ▇▇▇.▇▇ the date of this Warrant certificate, each Warrant
entitles the Holder to purchase one (1) Warrant Share for the Warrant Price.
Hereafter, until their exercise or termination, the number of Warrant Shares
that may be purchased and the Warrant Price per Warrant Share may be adjusted
upward or downward as provided in this Section 5.
a. Adjustment in the Number of Warrant Shares. The
number of Warrant Shares that each Warrant entitles the Holder to
purchase shall be proportionately adjusted upward for any increase, or
downward for any decrease, in the number of issued and outstanding
shares of Common resulting from a stock split, reverse stock split,
stock dividend, combination or reclassification effected without
receipt of consideration by Aironet, and in no other circumstance.
b. Adjustment in the Warrant Price. The Warrant
Price per Warrant Share shall be proportionately adjusted downward for
any increase, or upward for any decrease, in the number of issued and
outstanding shares of Common resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification effected
without receipt of consideration by Aironet, and in no other
circumstance.
c. Warrant Certificates. Upon any adjustments in
the number of Warrant Shares and Warrant Price, Aironet shall record
such adjustments on its stock transfer records, and the Holder may, but
need not, surrender this certificate to Aironet for replacement with
Warrant certificates that evidence the revised number of Warrant Shares
and Warrant Price.
6. FRACTIONAL INTERESTS. Aironet shall not be required to
issue fractional Warrant Shares on the exercise of the Warrants or upon any
adjustment pursuant to Section 5 in the number of Warrant Shares that each
Warrant entitles a Holder to purchase. Any fractional Warrant Shares that would
otherwise result from any such adjustments or exercise shall be eliminated
either by rounding up to the next higher whole number of Warrant Shares for
fractions of one-half (1/2) or more, or by rounding down to the next lower whole
number of Warrant Shares for fractions of less than one-half (1/2).
7. NO RIGHTS AS STOCKHOLDER. The Warrants do not confer upon Holder
any rights as a stockholder of Aironet prior to Holder's exercise of the
Warrants. Without limiting the generality of the foregoing, the Warrants do not
entitle Holder to vote, receive dividends, consent or receive notices as a
stockholder in respect of any meeting for the election of directors or any other
matter; provided, however, that transferability of the Warrants is restricted
pursuant
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to the terms and conditions in the Stockholders Agreement among Aironet and its
Stockholders on the same basis as the Common and any other security which is
governed thereby.
8. MISCELLANEOUS.
a. These Warrants are issued in accordance with the laws
governing corporations organized under the laws of the State of
Delaware and securities issued in the State of Ohio, and shall be
construed under and governed by such laws without regards to conflict
or choice of laws, statutes, regulations, rules or principles. Any
action relating to theses Warrants or their issuance shall be brought
in the courts, state or federal, sitting in Summit County, Ohio, and
the Holder by taking delivery of this certificate consents to the
jurisdiction and venue of such courts, and agrees not to contest venue
on the grounds of forum non conveniens or otherwise.
b. 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 for next day delivery, the next business day after
deposit, to the Holder at its address as set forth in the stock records
of Aironet, and to Aironet at its principal place of business.
c. Subject to provisions herein regarding restrictions on
transferability, these Warrants shall inure to the benefit of Holder,
and its permitted successors and assigns.
d. The captions in this certificate are for convenience only
and shall not affect the construction or interpretation of any term or
provision hereof. The use in this certificate of the masculine,
feminine or neuter pronoun, shall include the others as the context may
require.
e. Any waiver or amendment of any provision, covenant or
condition of these Warrants must be in writing and executed by Aironet
and Holder. No delay in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any such right, power or privilege, preclude
any further exercise thereof or the exercise of any other such right,
power or privilege.
(End of Exhibit A)
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