SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13D-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13D-2(a)
AIRONET WIRELESS COMMUNICATIONS, INC.
(NAME OF ISSUER)
COMMON STOCK, $.01 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
00943A 10 7
(CUSIP NUMBER)
Larry R. Carter
170 West Tasman Drive
San Jose, CA 95134
(408) 526-4000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
November 12, 1999
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d(f) or 13d-1(g), check
the following box ( ) .
(Continued on the following pages)
CUSIP NO. 00943A 10 7 13D
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
TELXON CORPORATION (IRS IDENTIFICATION NUMBER 33-0745075)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ( )
(b) ( )
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) ( )
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
7 SOLE VOTING POWER - 0 -
NUMBER OF SHARES 8 SHARED VOTING POWER -0-
BENEFICIALLY OWNED
BY EACH 9 SOLE DISPOSITIVE POWER - 0 -
REPORTING PERSON
WITH 10 SHARED DISPOSITIVE POWER -0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-4,994,262-
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES ( )
NOT APPLICABLE
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
35.1% (BASED ON 14,202,910 SHARES OF AIRONET WIRELESS
COMMUNICATIONS, INC. COMMON STOCK OUTSTANDING AS OF
NOVEMBER 12, 1999)
14 TYPE OF REPORTING PERSON
CO
CUSIP NO. 00943A 10 7 13D
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
THE RETAIL TECHNOLOGY GROUP, INC.
(IRS IDENTIFICATION NUMBER 34-1724226)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ( )
(b) ( )
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) ( )
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
7 SOLE VOTING POWER -0-
NUMBER OF SHARES
BENEFICIALLY OWNED 8 SHARED VOTING POWER -4,994,262-
BY EACH
REPORTING PERSON 9 SOLE DISPOSITIVE POWER -0-
WITH
10 SHARED DISPOSITIVE POWER -0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-4,994,262-
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES ( )
NOT APPLICABLE
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
35.1% (BASED ON 14,202,910 SHARES OF AIRONET WIRELESS
COMMUNICATIONS, INC. COMMON STOCK OUTSTANDING AS OF
NOVEMBER 12, 1999)
14 TYPE OF REPORTING PERSON
OO
ITEM 1. SECURITY AND ISSUER.
This statement on Schedule 13D relates to the Common Stock, $.01
par value per share (the "Issuer Common Stock"), of Aironet Wireless
Communications, Inc., a Delaware corporation (the "Issuer"). The
principal executive offices of the Issuer are located at 3875 Embassy
Parkway, Akron, Ohio 44333.
ITEM 2. IDENTITY AND BACKGROUND.
(a) The names of the persons filing this statement are Telxon
Corporation, a Delaware corporation ("Telxon") and The Retail
Technology Group, Inc., a Delaware corporation and a wholly owned
subsidiary of Telxon ("Retail Group"). Set forth on Annex A to this
Schedule 13D is a list of the directors and executive officers of
Telxon and Retail Group (collectively, the "Directors and Officers")
and the present principal occupation of each of the Directors and
Officers.
(b) The address of the principal office and place of business of
Telxon is 3330 West Market Street, Akron, Ohio 44333. Retail Group,
having no operations other than the ownership of Issuer Common Stock,
has the same business address as Telxon.
(c) Telxon designs, manufactures, integrates, markets and
supports transaction-based mobile information systems. Retail Group
has no operations other than the ownership of Issuer Common Stock.
(d) During the past five years, neither Telxon or Retail Group,
nor, to Telxon's and Retail Group's knowledge, any of the Director and
Officers, has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) During the past five years, neither Telxon or Retail Group,
nor, to Telxon's and Retail Group's knowledge, any of the Director and
Officers, was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which
such person was or is subject to a judgment, decree or final order
enjoining future violations of or prohibiting or mandating activity
subject to federal or state securities laws or finding any violation
with respect to such laws.
(f) Telxon is a Delaware corporation and Retail Group is a
Delaware corporation. Each of the Directors and Officers is a United
States citizen, except for Peter A. Lomax who is a citizen of the
United Kingdom of Great Britain and Northern Ireland.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The Issuer was incorporated in 1993 as a wholly owned subsidiary
of Telxon. Following the initial public offering of the Issuer Common
Stock on July 30, 1999, Telxon owned approximately 35.1% of the
outstanding Issuer Common Stock. On November 12, 1999, Telxon
contributed all of its Issuer Common Stock to Retail Group.
ITEM 4. PURPOSE OF TRANSACTION.
(a) - (b) On November 12, 1999, Telxon contributed all of its
shares of Issuer Common Stock to Retail Group in connection with the
execution of the Agreement and Plan of Merger and Reorganization (the
"Merger Agreement"), dated as of November 8, 1999, by and among Cisco
Systems, Inc., a California corporation ("Cisco"), Osprey Acquisition
Corporation, Delaware corporation and wholly owned subsidiary of Cisco
("Osprey"), and the Issuer. The Merger Agreement is filed as Exhibit 1
to the Schedule 13D filed by Cisco on November 18, 1999 and is
incorporated herein in its entirety by reference.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
(g) Not applicable.
(h) Not applicable.
(i) Not applicable.
(j) Other than as described above, Telxon and Retail Group
currently have no plans or proposals which related to, or may result
in, any action similar to any of those enumerated in Items 4(a) - (j)
of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) - (b) Retail Group directly owns 4,994,262 shares of Issuer
Common Stock. As the sole stockholder of Retail Group, Telxon may be
deemed to be the beneficial owner of Issuer Common Stock owned by
Retail Group.
Pursuant to the Stockholder Agreement, dated November 8, 1999,
among Cisco, Osprey, the Issuer and Telxon, and the Joinder to the
Stockholder Agreement, dated November 8, 1999, by and among Cisco,
Osprey, the Issuer and Retail Group (hereinafter together referred to
as the "Stockholder Agreements"), neither Telxon nor Retail Group may
transfer any of their shares of Issuer Common Stock prior to the
earlier to occur of (i) such date and time as the merger of the Issuer
with Osprey shall become effective in accordance with the terms and
provisions of the Merger Agreement and (ii) the date of the
termination of the Merger Agreement.
Pursuant to the Stockholder Agreements, Retail Group and Cisco
have shared power to direct the vote of 4,994,262 shares of Issuer
Common Stock held by Retail Group (the "Shares"). Pursuant to the
Stockholder Agreements, Telxon and Retail Group irrevocably appointed
Cisco (or any nominee of Cisco) as their lawful attorney and proxy
with respect to the Shares. This proxy gives Cisco the limited right
to vote all of the Shares (i) in favor of approval of the Merger
Agreement and (ii) against any proposal for any recapitalization,
merger, sale of assets or other business combination between the
Issuer and any person or entity other than Cisco or Osprey or any
other action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or
agreement of the Issuer under the Merger Agreement or which could
result in any of the conditions to Issuer's obligations under the
Merger Agreement not being fulfilled. Retail Group may vote the Shares
of Issuer Common Stock on all other matters. The Stockholder
Agreements and the related proxies terminate upon the earlier to occur
of (i) such date and time as the merger of the Issuer with Osprey shall
become effective in accordance with the terms and provisions of the
Merger Agreement and (ii) the date of the termination of the Merger
Agreement. The foregoing summary of the Stockholder Agreements and the
related proxies is qualified in its entirety by reference to the copies
of the Stockholder Agreements included as Exhibit 1.2 and Exhibit 1.3
to this Schedule 13D and incorporated herein in their entirety by
reference.
As a result of the Stockholder Agreements and various other
stockholder agreements entered into by Cisco, Osprey and the Issuer in
connection with the Merger Agreement, Telxon and Retail Group may be
deemed to be the beneficial owners of at least 7,253,181 shares of
Issuer Common Stock held in the aggregate by stockholders of the Issuer
who have entered into such stockholders agreements. Telxon and Retail
Group disclaim beneficial ownership of these securities other than the
Shares. As a result of the Stockholder Agreements and such other
stockholder agreements, Telxon and Retail Group may be deemed to be
members of a group as set forth in Rule 13d-5, under the Securities
Exchange Act of 1934, as amended, however, Telxon and Retail Group
disclaim membership in any such group.
None of the Directors and Officers directly owns any securities
of the Issuer. However, by reason of their status as directors and/or
officers of Telxon and Retail Group, the Directors and Officers may be
deemed to be the beneficial owners of the Shares. Telxon and Retail
Group have been advised by each of the Directors and Officers that
such Directors and Officers disclaim beneficial ownership of any
shares of Issuer Common Stock from time to time owned directly or
beneficially by Telxon and Retail Group.
(c) Other than as set forth above in this Schedule 13D, neither
Telxon or Retail Group, nor, to their knowledge, any of the Directors
and Officers, has effected any transaction in the Issuer Common Stock
during the past 60 days.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Other than as set forth above in this Schedule 13D, to the
knowledge of Telxon and Retail Group, there are no contracts,
arrangements, understandings of relationships (legal or otherwise)
among the persons named in Item 2 and between such persons and any
person with respect to any securities of the Issuers, including but
not limited to transfer of voting of any of the securities, finders'
fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or
withholding of proxies, except standard default and similar provisions
contained in loan agreements.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit No. Description
1.1 Joint Filing Agreement, dated as of November 22, 1999, by and
between Telxon Corporation ("Telxon"), a Delaware corporation,
and The Retail Technology Group, Inc., a Delaware corporation and
wholly owned subsidiary of Telxon.
1.2 Stockholder Agreement, dated as of November 8, 1999, by and among
Cisco Systems, Inc., a California corporation ("Cisco"), Osprey
Acquisition Corporation, a Delaware corporation and a wholly
owned subsidiary of Cisco, Aironet Wireless Communications, Inc.,
a Delaware corporation, and Telxon Corporation, a Delaware
corporation and the related proxy.
1.3 Joinder to the Stockholder Agreement, dated as of November 8,
1999, by and among Cisco Systems, Inc., a California corporation
("Cisco"), Osprey Acquisition Corporation, a Delaware corporation
and a wholly owned subsidiary of Cisco, Aironet Wireless
Communications, Inc., a Delaware corporation, and The Retail
Technology Group, Inc., a Delaware corporation and the related
proxy.
1.4 The Merger Agreement filed as Exhibit 1 to the Schedule 13D filed
by Cisco on November 18, 1999 is incorporated herein in its
entirety by reference.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
November 22, 1999
TELXON CORPORATION
By: /s/ John W. Paxton, Sr.
---------------------------------
Chairman of the Board and Chief
Chief Executive Officer
THE RETAIL TECHNOLOGY GROUP, INC.
By: /s/ Woody M. McGee
--------------------------------
Vice President and Chief Financial
Officer
ANNEX A
EXECUTIVE OFFICERS
OF TELXON CORPORATION
The name and principal occupation of each of the executive officers
and directors of Telxon Corporation are listed below. The principal
business address of each of the executive officers of Telxon Corporation is
3330 West Market Street, Akron, Ohio 44333.
Name Principal Occupation
John W. Paxton, Sr. Chairman of the Board of Directors and Chief
Executive Officer
Kenneth A. Cassady President and Chief Operating Officer
Woody M. McGee Vice President and Chief Financial Officer
David H. Biggs Vice President and Chief Technology Officer
James G. Cleveland Executive Vice President, Americas
Peter A. Lomax Executive Vice President, Europe/Middle East/Africa
Robert A. Goodman Secretary of Telxon and Senior Partner of Goddman,
Wiess, Miller LLP, and General Counsel of Telxon
R. David Garwood President, R.D. Garwood, Inc.
L. Michael Hone President, Chief Executive and Director of
Centennial Technologies, Inc.
Richard J. Bogomolny Retired Chairman and Chief Executive Officer of
First National Supermarkets, Inc.
John H. Cribb Retired Vice-Chairman of Telxon
Raj Reddy Dean, School of Computer Science, Carnegie Mellon
University
DIRECTORS AND EXECUTIVE OFFICERS
OF THE RETAIL TECHNOLOGY GROUP, INC.
The name and principal occupation of each of the executive officers
and directors of The Retail Technology Group, Inc. are listed below. The
principal business address of each of the executive officers and directors
of The Retail Technology Group, Inc. is 3330 West Market Street, Akron,
Ohio 44333.
Name Principal Occupation
John W. Paxton, Sr. Chairman of the Board and Chief Executive Officer
of Telxon
Kenneth A. Cassady President and Chief Operating Officer of Telxon
Woody M. McGee Vice President and Chief Financial Officer of Telxon
EXHIBIT 1.1
JOINT FILING AGREEMENT
This JOINT FILING AGREEMENT, dated as of November 22, 1999, is
made by and between Telxon Corporation, a Delaware corporation ("Telxon"),
and The Retail Technology Group, Inc., a Delaware corporation and wholly
owned subsidiary of Telxon ("Retail Group"). Telxon and Retail Group
collectively referred to herein as the "Parties" and each individually as a
"Party." Pursuant to Rule 13d-1(k)(1)(iii) promulgated under the
Securities Exchange Act of 1934, as amended, the Parties hereby acknowledge
and agree that the foregoing Statement on Schedule 13D is filed on behalf
of each such Party and that all subsequent amendments to the Statement on
Schedule 13D shall be filed on behalf of each of the Parties without the
necessity of filing additional joint acquisition statements. The Parties
hereby acknowledge that each Party shall be responsible for timely filing
of such amendments, and for the completeness and accuracy of the
information concerning such Party contained therein, but shall not be
responsible for the completeness and accuracy of the information concerning
the other Party, except to the extent that such Party knows or has reason
to believe that such information is inaccurate.
IN WITNESS WHEREOF, the Parties hereto have executed this Joint
Filing Agreement as of the day and year first above written.
TELXON CORPORATION
By: /s/ John W. Paxton, Sr.
----------------------------------
Chairman of the Board and Chief
Chief Executive Officer
THE RETAIL TECHNOLOGY GROUP, INC.
By: /s/ Woody M. McGee
-----------------------------------
Vice President and Chief Financial
Officer
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.
170 West Tasman Drive
San Jose, CA 95134-1706
Attention: Senior Vice President, Legal and Government
Affairs
Facsimile No.: (408) 526-5925
Telephone No.: (408) 526-8252
with a copy to:
Brobeck, Phleger & Harrison LLP
Two Embarcadero Place
2200 Geng Road
Palo Alto, CA 94303
Attention: Therese A. Mrozek, Esq.
Facsimile No.: (650) 496-2885
Telephone No.: (650) 424-0160
(c) if to Company, to:
Aironet Wireless Communications, Inc.
3875 Embassy Parkway
Akron, OH 44333
Attention: Roger J. Murphy
Facsimile No.: (330) 664-7922
Telephone No.: (330) 664-7900
with a copy to:
Day, Berry & Howard LLP
City Place I
Hartford, CT 06103
Attention: Frank Marco, Esq.
Facsimile No.: (860) 275-0343
Telephone No.: (860) 275-0100
and
Goodman Weiss Miller LLP
100 Erieview Plaza
27th Floor
Cleveland, OH 44114
Attention: Robert Goodman, Esq. and Jay R. Faeges,
Esq.
Facsimile No.: (216) 363-5835
Telephone No.: (216) 696-3366
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/ Larry Carter By: /s/ John W. Paxton, Sr.
------------------------ ----------------------------------
Name: Name: John W. Paxton, Sr.
Title: Title Chairman and CEO
Address: 3300 W. Market Street
Akron, OH 44334
OSPREY ACQUISITION CORPORATION
By: /s/ Larry Carter
---------------------------
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/ John W. Paxton, Sr.
--------------------------------
Name: John W. Paxton, Sr.
Title: Chairman and CEO
Shares beneficially owned:
4,994,262 shares of Company Common Stock
EXHIBIT 1.3
JOINDER TO STOCKHOLDER AGREEMENT
(THE RETAIL TECHNOLOGY GROUP, INC.)
THIS JOINDER TO STOCKHOLDER AGREEMENT is made as of
November ____, 1999, by The Retail Technology Group, Inc. ("Assignee"), a
wholly-owned subsidiary of Telxon Corporation ("Assignor"), with respect to
the Stockholder Agreement (the "Stockholder Agreement"), dated 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 Assignor.
RECITALS:
WHEREAS, pursuant to an Agreement and Plan of Merger and
Reorganization (such agreement, as it may be amended or restated, is
hereinafter referred to as the "Reorganization Agreement"), dated as of
November 8, 1999, by and among Parent, Merger Sub, and Aironet Wireless
Communications, Inc., a corporation existing under the laws of Delaware
("Company"), 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, as of the time of the entry of the parties into the
Reorganization Agreement, Assignor owned of record 4,994,262 shares of the
outstanding Company Capital Stock (the "Shares");
WHEREAS, in order to induce Parent to enter into the Transaction,
Assignor entered into the Stockholder Agreement, under which Assignor,
among other things, agreed not to transfer or otherwise dispose of any of
the Shares, or any other shares of Company Capital Stock acquired by such
stockholder prior to the Expiration Date (as defined in Section 1.1 of the
Stockholder Agreement), and also agreed to vote the Shares and any other
such shares of Company Capital Stock so as to facilitate consummation of
the Transaction;
WHEREAS, Section 9.2 of the Stockholder Agreement permits
Assignor to assign the Shares to a wholly-owned subsidiary of Assignor
without the necessity of obtaining the consent generally required to be
obtained under the terms of said Section 9.2 from the other parties to the
Stockholder Agreement, provided that the assignee subsidiary agrees in
writing to be bound by the terms of the Stockholder Agreement with the same
force and effect as if it were Assignor and executes and delivers to Parent
an Irrevocable Proxy in substantially the same form as executed by Assignor
pursuant to the Stockholder Agreement; and
WHEREAS, Assignor desires to assign the Shares to Assignee as
permitted by Section 9.2 of the Stockholder Agreement.
NOW, THEREFORE, in satisfaction of the requirements of Section
9.2 of the Stockholder Agreement in order to permit the transfer of the
Shares to Assignee without the necessity of obtaining the consent of the
other parties to the Stockholder Agreement to such transfer, Assignee
agrees as follows:
1. Assignee shall be bound by the terms of the Stockholder
Agreement with the same force and effect as if it were Assignor.
2. Assignee agrees to execute and deliver, and
contemporaneously is delivering, a duly executed Irrevocable Proxy in
substantially the same form as executed by Assignor pursuant to the
Stockholder Agreement.
IN WITNESS WHEREOF, the parties have caused this Joinder to
Stockholder Agreement to be executed as of the date first above written.
ASSIGNEE:
THE RETAIL TECHNOLOGY
GROUP, INC.
By: /s/ Woody M. McGee
---------------------------
Woody M. McGee
Vice President and
Chief Financial Officer
Address:
c/o Telxon Corporation
3300 W. Market Street
Akron, OH 44334
Total Number of Shares of Company Capital Stock owned by Assignee
upon consummation of the transfer:
Common Stock: 4,994,262 shares
IRREVOCABLE PROXY
TO VOTE STOCK OF
AIRONET WIRELESS COMMUNCIATIONS, 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 ____, 1999
THE RETAIL TECHNOLOGY
GROUP, INC.
By: /s/ Woody M. McGee
-----------------------------
Woody M. McGee
Vice President and
Chief Financial Officer
Shares beneficially owned:
4,994,262 shares of Company Common Stock
