<PAGE> 1
SCHEDULE 14A
(RULE 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
<TABLE>
<S> <C>
[ ] Preliminary Proxy Statement
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
[ ] Confidential, for the Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
</TABLE>
AIRNET COMMUNICATIONS CORPORATION
- - --------------------------------------------------------------------------------
(Name of Registrant as Specified in Its Charter)
- - --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
------------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
------------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
------------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
------------------------------------------------------------------------
(5) Total fee paid:
------------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
------------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
------------------------------------------------------------------------
(3) Filing Party:
------------------------------------------------------------------------
(4) Date Filed:
------------------------------------------------------------------------
<PAGE> 2
AIRNET COMMUNICATIONS CORPORATION
100 RIALTO PLACE
SUITE 300
MELBOURNE, FLORIDA 32901
TELEPHONE: (321) 953-6000
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
JUNE 20, 2000
The Annual Meeting of Stockholders of AirNet Communications Corporation
(the "Company") will be held at the Hilton Airport Hotel, 200 Rialto Place,
Melbourne, Florida, at 10:00 a.m., on Tuesday, June 20, 2000, for the following
purposes:
1. To elect nine Directors to the Board of Directors, with three
Directors elected for a one-year term, three Directors elected for a
two-year term and three Directors elected for a three-year term;
2. To approve the proposed Seventh Amended and Restated Certificate of
Incorporation, which has been revised to delete outdated and unnecessary
provisions from the Sixth Amended and Restated Certificate of
Incorporation;
3. To ratify the selection of Deloitte & Touche LLP as the Company's
independent auditors for the current fiscal year; and
4. To transact such other business as may properly come before the
meeting or any postponements or adjournments thereof.
Only stockholders of record at the close of business on April 21, 2000 are
entitled to notice of and to vote at this Annual Meeting or any postponements or
adjournments of this Annual Meeting. A list of those stockholders will be
available for examination by any stockholder of the Company during ordinary
business hours for 10 days before this Annual Meeting at the principal offices
of the Company at 100 Rialto Place, Suite 300, Melbourne, Florida 32901.
ALL STOCKHOLDERS OF THE COMPANY ARE CORDIALLY INVITED TO ATTEND THE MEETING
IN PERSON. IT IS IMPORTANT THAT YOUR SHARES BE REPRESENTED AT THE MEETING.
THEREFORE, WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, PLEASE COMPLETE, SIGN,
DATE AND PROMPTLY MAIL THE ACCOMPANYING PROXY CARD IN THE POSTAGE PAID ENVELOPE
PROVIDED. RETURNING THE PROXY CARD WILL NOT PREVENT YOU FROM VOTING IN PERSON AT
THIS ANNUAL MEETING SHOULD YOU SO DESIRE. AS EXPLAINED IN THE PROXY STATEMENT,
YOU MAY WITHDRAW YOUR PROXY AT ANY TIME BEFORE IT IS ACTUALLY VOTED AT THE
MEETING.
Beneficial owners of stock held by banks, brokers or investment plans (in
"street name") will need proof of ownership to be admitted to this Annual
Meeting. A recent brokerage statement or letter from your broker or bank are
examples of proof of ownership.
By Order of the Board of Directors,
[GERALD HATTORI SIGNATURE]
Gerald Y. Hattori, Secretary
May 1, 2000
<PAGE> 3
AIRNET COMMUNICATIONS CORPORATION
100 RIALTO PLACE, SUITE 300
MELBOURNE, FLORIDA 32901
PROXY STATEMENT
FOR
THE ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD JUNE 20, 2000
GENERAL INFORMATION
This proxy statement is furnished in connection with the solicitation of
proxies by the Board of Directors of AirNet Communications Corporation ("AirNet"
or the "Company") for the Annual Meeting of Stockholders to be held on Tuesday,
June 20, 2000 at 10:00 a.m. at the Hilton Airport Hotel, 200 Rialto Place,
Melbourne, Florida 32901, and any adjournments thereof. The enclosed proxy, if
properly executed and returned, may be revoked at any time before it is
exercised by delivering to the Secretary of the Company a duly executed written
notice of revocation, by delivering a duly executed proxy bearing a later date,
or by attending the Annual Meeting and voting in person. Attendance at the
Annual Meeting will not, by itself, revoke a proxy.
Shares represented by valid proxies will be voted in accordance with the
specifications in the proxies. If no specifications are made, the proxies will
be voted FOR the candidates nominated by the Board of Directors, FOR the
approval of the Seventh Amended and Restated Certificate of Incorporation and
FOR the ratification of the selection of Deloitte & Touche LLP as the Company's
independent auditors for the current fiscal year.
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1999, containing financial statements for that year and prior periods, is
being mailed with this proxy statement.
A copy of the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, as filed with the Securities and Exchange Commission
("SEC"), except for exhibits, will be furnished without charge to any
stockholder upon written request to the Company Secretary, AirNet Communications
Corporation, 100 Rialto Place, Suite 300, Melbourne, Florida 32901.
The approximate date on which this proxy statement and accompanying proxy
are first being sent or given to security holders is May 1, 2000.
VOTING SECURITIES AND VOTES REQUIRED
At the close of business on April 21, 2000, the record date for the
determination of stockholders entitled to notice of and to vote at the Annual
Meeting, there were outstanding and entitled to vote an aggregate of 23,478,310
shares of Common Stock of the Company, $.001 par value per share ("Common
Stock"), constituting all of the outstanding voting stock of the Company.
Holders of Common Stock are entitled to one vote per share.
The holders of a majority of the shares of Common Stock outstanding and
entitled to vote at the Annual Meeting will constitute a quorum for the
transaction of business at the Annual Meeting. Shares of Common Stock
represented in person or by proxy (including shares which abstain or do not vote
with respect to one or more of the matters presented for stockholder approval)
will be counted for purposes of determining whether a quorum exists at the
Annual Meeting.
1. The affirmative vote of the holders of a plurality of the shares of
Common Stock represented at the Annual Meeting in person or by proxy is
required for the election of directors;
2. The affirmative vote of the holders of a majority of the
outstanding shares of the Company's Common Stock is required for the
approval of the proposed Seventh Amended and Restated Certificate of
Incorporation; and
1
<PAGE> 4
3. The affirmative vote of the holders of a majority of the shares of
Common Stock represented at the Annual Meeting in person or by proxy is
required for the ratification of the selection of Deloitte & Touche LLP as
the Company's independent auditors for the current fiscal year.
Shares that abstain from voting as to a particular matter, and shares held
in "street name" by a broker or nominee who indicates on a proxy that he or she
does not have discretionary authority to vote such shares as to a particular
matter, will not be counted as votes in favor of such matter, and also will not
be counted as shares voted on such matter. Accordingly, abstentions and "broker
non-votes" will have no effect on the voting on matters, such as the ones
presented for stockholder approval at this Annual Meeting (other than the
proposal to approve the proposed Seventh Amended and Restated Certificate of
Incorporation, which vote is based on the number of outstanding shares of Common
Stock), that require the affirmative vote of a certain percentage of the shares
voting on the matter.
PROPOSAL NO. 1
ELECTION OF DIRECTORS
The Board of Directors has fixed the number of Directors at nine for the
coming year. The nine persons named below have been nominated by the Board of
Directors for election at the Annual Meeting as Directors of the Company to
serve for the term corresponding to the class into which such Director has been
assigned. Each of the nominees has indicated his willingness to continue to
serve, if elected, as a Director.
Unless otherwise directed, the persons named in the proxy intend to vote
for the election of these nominees. If any nominee is unable to serve, proxies
will be voted for such other candidates as may be nominated by the Board of
Directors. Votes may be cast for the election of the nominees or withheld. Votes
that are withheld will be excluded from the vote. Since the affirmative vote of
the holders of a plurality of the Common Stock represented at the meeting in
person or by proxy will be required to elect directors, withheld votes will have
the effect of negative votes.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS VOTE FOR THE
ELECTION OF THE NOMINEES.
NOMINEES FOR ELECTION AT 2000 ANNUAL MEETING
CLASS I
The following nominees assigned to this class are nominated for a term to
expire at the third succeeding Annual Meeting of Stockholders following their
election, to serve until their successors are duly elected and qualified or
until their death, resignation or removal.
G. Michael Kirby, 45, has been a Director since March 8, 2000. Mr. Kirby
has more than 20 years of experience in sales and management with both Cisco
Systems, Inc. and Wang Laboratories, Inc. He is currently Vice President,
Worldwide Software Sales for Cisco. In his ten years at Cisco, Mr. Kirby has
played leading roles in many market initiatives of the commercial marketplace,
including developing and driving the initial field strategy for the Service
Provider market. Subsequent to that, he was named Area Vice President for the
Eastern United States, followed by a promotion to Vice President, Americas
Operations. Mr. Kirby holds a B.S. degree in Economics from Temple University.
Leslie D. Shroyer, 55, has been employed by Motorola, Inc. since 1984. Most
recently, from 1997 through January 2000, Mr. Shroyer served as Senior Vice
President and Chief Information Officer for Motorola. In prior Motorola
assignments, he was the General Manager of the Internet Software Products
Division and responsible for the development of Motorola's voice-over IP network
equipment. Mr. Shroyer also served as the General Manager of a cellular business
unit that developed and deployed nationwide wireless data communications
infrastructure in the U.S., Canada, U.K., Germany, Japan, Singapore, Malaysia,
China and Australia. Mr. Shroyer is currently on leave of absence from Motorola
and expects to retire from Motorola in April 2000. Mr. Shroyer is a member of
the board of directors of Click Commerce, Inc., a privately held
business-to-business e-commerce company currently in registration for an initial
public offering. Mr. Shroyer
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<PAGE> 5
is also a member of the board of directors and the Interim President and CEO of
Warrantycheck.com, a privately held early stage business-to-business e-commerce
company. Prior to 1984, Mr. Shroyer was employed by Texas Instruments for 12
years in a variety of information technology and product development
assignments. Mr. Shroyer holds Bachelors of Engineering Science and Masters of
Management Science degrees from the University of Texas.
J. Douglass Mullins, 51, has served as a Director since the Company's
inception in January 1994. He served as Chairman of the Board from October 1996
until April 1998 and served as Chairman from March 1999 until October 1999. Mr.
Mullins was acting Chief Executive Officer between February 3, 1997 and March
10, 1997. Mr. Mullins also served as Secretary and Treasurer during 1994. Since
1993, Mr. Mullins has been President of Venture First Associates of Melbourne,
Inc., a venture capital firm, and general partner of HVFM-I, L.P., one of the
AirNet stockholders. Since 1984, Mr. Mullins has been involved with numerous
ventures in the telecommunication and imaging markets and sits on the boards of
most of these venture companies. Mr. Mullins received a Bachelor of Science
degree from Georgia Institute of Technology with highest honors and holds a
Master of Business Administration from Harvard Business School.
CLASS II
The following nominees assigned to this class are nominated for a term to
expire at the second succeeding Annual Meeting of Stockholders following their
election, to serve until their successors are duly elected and qualified or
until their death, resignation or removal.
R. Lee Hamilton, Jr., 41, has served as President since April 1998 and as
Chief Executive Officer since January 1999. He joined the Company in July 1996
as Vice President of Engineering and Operations. In April 1998 he was elected
President and Chief Operating Officer, a position he held until January 1999.
Prior to joining the Company, Dr. Hamilton held several executive positions at
Motorola, Inc., from 1990 to 1996, most recently as General Manager for Systems
Transmission Products. Prior to joining Motorola, Dr. Hamilton was a Professor
in the Electrical Engineering Department at Ohio State University, where he
managed a research program in wireless communications systems. He holds a Ph.D.
in Electrical Engineering from Purdue University, and a B.S. in Electrical
Engineering from Virginia Polytechnic Institute and State University.
Bruce R. DeMaeyer, 61, has served as a Director since January 1996. Since
1992, Mr. DeMaeyer has been President of Great Western Teleconsulting, focusing
primarily on the domestic and international wireless telecommunications
marketplace. Prior to founding Great Western Teleconsulting, Mr. DeMaeyer served
as President of Ameritech Mobile Communications. Mr. DeMaeyer received a B.S. in
Electrical Engineering from Illinois Institute of Technology.
James W. Brown, 48, has served as a Director since November 1997 as the
designee of SCP Private Equity Partners, L.P., one of the Company's
stockholders, and as Chairman since October 1999. Mr. Brown has been a Partner
of SCP Private Equity Management, L.P., which manages a $265 million private
equity investment fund, since its inception in 1996. Mr. Brown has also been a
Managing Director of CIP Capital Management, Inc. since 1994. From 1989 until
1994, Mr. Brown was Chief of Staff to the Governor of Pennsylvania. During his
public career, he also served as Pennsylvania Secretary of General Services,
chairman of the Pennsylvania Higher Education Facilities Authority, chairman of
the Pennsylvania Public School Building Authority and chairman of the Finance
Committee of the Pennsylvania Housing Finance Agency. Mr. Brown also served as a
trustee of the $15 billion Pennsylvania State Employees' Retirement System.
Since 1991, Mr. Brown has been an adjunct professor at Villanova University,
where he teaches an honors seminar on political campaigns and elections. Mr.
Brown received a J.D. from the University of Virginia, where he was an editor of
the Virginia Journal of International Law, and a B.A., magna cum laude, from
Villanova University's Honors Program.
CLASS III
The following nominees assigned to this class are nominated for a term to
expire at the first succeeding Annual Meeting of Stockholders following their
election, to serve until their successors are duly elected and qualified or
until their death, resignation or removal.
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<PAGE> 6
Joel P. Adams, 42, has served as a Director since the inception of the
Company in January 1994 and as Vice Chairman since October 1999. Mr. Adams has
served since 1987 as Vice President of Fostin Capital Corporation and is the
founder and a general partner of Adams Capital Management, L.P., a national
venture capital firm established in 1994 with offices in Austin, Texas, Palo
Alto, California, Philadelphia and Pittsburgh, Pennsylvania. Adams Capital
currently manages $250 million and invests in first-stage telecommunications and
information technology companies. In addition, Mr. Adams serves as a Director of
NetSolve, Inc., a public company, and currently serves on several private
company boards. Mr. Adams graduated with distinction from Carnegie Mellon
University, earning an M.S. in Industrial Administration. His B.S. in Nuclear
Engineering is from the State University of New York at Buffalo.
Robert M. Chefitz, 40, has served as a Director since January 1997. Mr.
Chefitz is a General Partner and Vice President of Patricof & Co. Ventures,
Inc., an affiliate of some of the Company's stockholders. He joined the firm in
1987 and was admitted as a General Partner in 1991. Previously, Mr. Chefitz was
a Senior Associate with Golder, Thomas & Cressey Co. of Chicago, a venture
capital firm. Mr. Chefitz received an M.B.A. from Columbia University and a B.A.
from Northwestern University.
Richard G. Coffey, 39, has served as a Director since August 1998 as the
designee of Tandem PCS Investments, L.P., one of the Company's stockholders.
Since 1996, Mr. Coffey has been the Managing Director of Tandem Investments,
Inc., a private equity firm located in West Hartford, Connecticut, and since
1998 a Managing Member of Tandem GSM Capital, LLC, the Special Limited Partner
of Tandem PCS Investments, L.P. Prior to founding Tandem, Mr. Coffey was
Director of Private Investments for the Pennsylvania Public School Employees'
Retirement Systems from 1992 to 1996. Mr. Coffey received an M.B.A. from The
Darden School of the University of Virginia and an A.B. from Princeton
University.
COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors has an Audit Committee, a Compensation Committee and
a Nominating Committee.
The Audit Committee currently consists of Messrs. Coffey (Chairman),
Chefitz, DeMaeyer, and Harrison. The current principal responsibilities of the
Audit Committee are (a) to review (i) the Company's financial statements
contained in filings with the Securities and Exchange Commission, (ii) matters
relating to the examination of the Company by its independent auditors,
accounting procedures and controls, and (iii) the use and security of the
Company's liquid assets through the review of the Treasurer's function, and (b)
to recommend the appointment of independent accountants to the Board for its
consideration and approval, subject to ratification by the stockholders. The
Audit Committee held six meetings during 1999.
The Compensation Committee currently consists of Messrs. Adams (Chairman),
Brown, Coffey, and Dr. Hamilton. The current principal responsibilities of the
Compensation Committee are (a) to make recommendations with respect to executive
officer and senior management compensation and incentive compensation programs;
(b) subject to limitations set forth in the plans, to administer the Company's
stock option plans including the issuance of stock in connection with the
Company's incentive bonus plans; and (c) to review management development and
succession programs. The Compensation Committee held eight meetings during 1999.
The Nominating Committee currently consists of Messrs. Mullins (Chairman),
Adams, Brown, and Dr. Hamilton. The current principal responsibilities of the
Nominating Committee are to recommend nominees to fill vacancies on the Board,
newly created directorships and expired terms of directors. The Nominating
Committee does not consider nominees recommended by the Company's stockholders.
However, a stockholder may submit a nomination of a candidate for election to
the Board of Directors to the Company's Secretary. See "Stockholder Proposals
and Nominations" below. The Nominating Committee held eight meetings during
1999.
During 1999, the Board of Directors held 22 meetings. All members of the
Board of Directors except Messrs. DeMaeyer and Chefitz attended at least 75% of
the aggregate number of meetings of the Board of Directors and the Committees of
which they were members held during their tenure.
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<PAGE> 7
COMPENSATION OF DIRECTORS
Non-employee Directors are entitled to receive option grants and other
awards under the 1999 Equity Incentive Plan. Non-employee Directors are
currently entitled to receive an award of nonqualified stock options every three
years, the amount of which is determined by the Board of Directors in its sole
discretion. These director options will have an exercise price equal to the fair
market value of the Company's Common Stock when granted and will vest in 36
equal monthly installments provided the Director has attended at least 75% of
Board of Director meetings in the 12 months preceding each vesting date, with
exception for special circumstances. Unvested options for a particular year will
vest on a pro rata basis if a Director leaves or is removed from office,
provided he met the attendance requirement for the portion of the year he served
as a Director. All Directors will be reimbursed for expenses incurred in
attending meetings of the Board of Directors and its Committees. In September
1999, each non-employee Director received non-qualified stock options to
purchase 7,533 shares of Common Stock at an exercise price of $8.63 per share.
In September 1999, the Company also issued to Mr. DeMaeyer 7,649 shares of our
common stock in satisfaction of $66,000 of accrued fees due to him for his
services as a Director under the Company's prior policy of cash compensation of
$1,500 per meeting for independent Directors.
SECURITY OWNERSHIP
The following table sets forth certain information with respect to the
ownership of the Company's Common Stock as of April 12, 2000 by (i) persons
known by the Company to be beneficial owners of more than 5% of its Common
Stock, (ii) the Directors and nominees for election as Directors of the Company,
(iii) the executive officers of the Company named in the Summary Compensation
Table, and (iv) all executive officers and Directors of the Company as a group:
<TABLE>
<CAPTION>
SHARES OF COMMON STOCK
BENEFICIALLY OWNED (1)
-----------------------
BENEFICIAL OWNER SHARES (2) PERCENT
---------------- ---------- -------
<S> <C> <C>
SCP Private Equity Partners, LP
800 The Safeguard Building 435 Devon Park Drive
Wayne, PA 19087............................................. 3,814,794(3) 16.1%
Funds managed by:
Adams Capital Management, Inc.
518 Broad Street Sewickley, PA 15143........................ 2,701,050(4) 11.5%
Harris Corporation
1025 West NASA Boulevard
Melbourne, FL 32919......................................... 2,353,673(5) 10.0%
Tandem PCS Investments, LP
c/o Live Cycles Holding Co.,
1981 McGill College Avenue, 7th Floor
Montreal, Quebec H3A 1G1, Canada............................ 2,310,903(6) 9.8%
Funds managed by:
Patricof & Co. Ventures, Inc.
445 Park Avenue New York, NY 10022.......................... 2,211,078(7) 9.4%
HVFM-I, LP
c/o Venture First Associates of Melbourne, Inc.
1901 S. Harbor City Boulevard, Suite 501
Melbourne, FL 32901......................................... 1,743,485(8) 7.4%
Joel P. Adams............................................... 2,701,050(9) 11.5%
James W. Brown.............................................. 3,814,794(10) 16.1%
Robert M. Chefitz........................................... 2,212,961(11) 9.4%
</TABLE>
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<PAGE> 8
<TABLE>
<CAPTION>
SHARES OF COMMON STOCK
BENEFICIALLY OWNED (1)
-----------------------
BENEFICIAL OWNER SHARES (2) PERCENT
---------------- ---------- -------
<S> <C> <C>
Richard G. Coffey........................................... 2,310,903(12) 9.8%
Bruce R. DeMaeyer........................................... 24,462(13) *
Milo D. Harrison............................................ 34,992(14) *
G. Michael Kirby............................................ 9,834(15) *
J. Douglass Mullins......................................... 1,743,485(16) 7.4%
Leslie D. Shroyer........................................... --
R. Lee Hamilton, Jr. ....................................... 219,712(17) *
Mark G. Demange............................................. 20,387(18) *
Glenn A. Ehley.............................................. 64,571(19) *
Gerald Y. Hattori........................................... 20,387(20) *
All executive officers and directors as a group (15
persons).................................................. 13,181,805 54.8%
</TABLE>
- - ---------------
* Indicates less than 1%
(1) Under the rules of the Securities and Exchange Commission, a person is
deemed to be the beneficial owner of a security if such person, directly or
indirectly, has or shares the power to vote or direct the voting of such
security or the power to dispose or direct the disposition of such
security. A person is also deemed to be a beneficial owner of any
securities if that person has the right to acquire beneficial ownership
within 60 days after April 12, 2000. Accordingly, more than one person may
be deemed to be a beneficial owner of the same securities. Each beneficial
owner has sole voting and investment power with respect to the shares
listed in the table, unless otherwise indicated by footnote.
(2) Information is as of April 12, 2000.
(3) As reported in the Schedule 13D filed on behalf of SCP Private Equity
Partners, L.P., of this amount 3,642,130 shares are beneficially held by
SCP Private Equity Partners, L.P., which amount includes 204,443 shares
issuable upon exercise of a warrant; 169,799 shares are beneficially held
by CIP Capital, L.P.; and 1,400 shares and options for 1,883 shares
exercisable within 60 days after April 12, 2000 are beneficially held by
James W. Brown. SCP, CIP and Mr. Brown have sole voting and dispositive
power with respect to each of their respective shares, and Mr. Brown has
shared voting and dispositive powers as to 3,814,794 shares.
(4) As reported in the Schedule 13G filed on behalf of Adams Capital
Management, L.P. ("ACM"), of this amount 1,641,874 shares are beneficially
held by ACM, and ACM has shared voting and dispositive power with respect
to these shares. The amount beneficially owned by ACM also includes 785,700
shares beneficially held by The P/A Fund, L.P., 271,593 shares beneficially
held by Fostin Capital Associates II, and options for 1,883 shares
exercisable within 60 days after April 12, 2000.
(5) As reported in the Schedule 13G filed on behalf of Harris Corporation, this
amount includes 169,173 shares issuable upon exercise of a warrant.
(6) As reported in the Schedule 13G filed on behalf of Tandem PCS Investments,
L.P. ("Tandem"), this amount includes 163,555 shares issuable upon exercise
of a warrant. The amount beneficially owned by Tandem includes 1,883 shares
exercisable within 60 days after April 12, 2000.
(7) As reported in the Schedule 13G filed on behalf of Patricof & Co. Venture,
Inc. ("Patricof"), this amount includes 994,392 shares beneficially held by
APA Excelsior III, L.P., 378,958 shares beneficially held by APA Excelsior
III/Offshore, L.P., 785,700 shares beneficially held by The P/A Fund, L.P.,
which is co-managed by APA Pennsylvania Partners II and Fostin Capital
Partners II (see footnotes 4 and 9), and 52,028 shares beneficially held by
Landmark Equity Partners V, L.P. Patricof has shared voting and dispositive
power with respect to 2,159,050 shares.
(8) As reported in the Schedule 13G filed on behalf of HVFM-I, L.P., this
amount includes 1,742,135 shares beneficially held by HVFM-I, L.P. HVFM-I,
L.P., VFAM-I, L.L.C. and Mr. Mullins
6
<PAGE> 9
have shared voting and dispositive power with respect to such shares. This
amount also includes options for 1,883 shares exercisable within 60 days
after April 12, 2000.
(9) As reported in the Schedule 13G filed on behalf of Adams Capital
Management, L.P. ("ACM"), of this amount 1,641,874 shares are beneficially
held by ACM, and ACM has shared voting and dispositive power with respect
to these shares. The amount beneficially owned by Mr. Adams also includes
785,700 shares beneficially held by The P/A Fund, L.P., 271,593 shares
beneficially held by Fostin Capital Associates II, and options for 1,883
shares exercisable within 60 days after April 12, 2000. Mr. Adams is the
President of Adams Capital Management, which manages the assets of Fostin
Capital Corp. which is a general partner of Adams Capital Management, L.P.
and of Fostin Capital Partners II, which is a general partner of The P/A
Fund, L.P. Mr. Adams is also Vice President of Fostin Capital Corp. Mr.
Adams disclaims beneficial ownership of all such shares except to the
extent of his pecuniary interest therein.
(10) As reported in the Schedule 13D filed on behalf of SCP Private Equity
Partners, L.P., of this amount 3,642,130 shares are beneficially held by
SCP Private Equity Partners, L.P., which amount includes 204,443 shares
issuable upon exercise of a warrant; 169,799 shares are beneficially held
by CIP Capital, L.P.; and 1,400 shares and options for 1,883 shares
exercisable within 60 days after April 12, 2000 are beneficially held by
James W. Brown. SCP, CIP and Mr. Brown have sole voting and dispositive
power with respect to each of their respective shares, and Mr. Brown has
shared voting and dispositive powers as to 3,814,794 shares. Mr. Brown is a
Partner of SCP Private Equity Partners, L.P. and Managing Director of CIP
Capital, L.P. Mr. Brown disclaims beneficial ownership of all such shares
except to the extent of his pecuniary interest therein.
(11) As reported in the Schedule 13G filed on behalf of Patricof & Co. Venture,
Inc. ("Patricof"), this amount includes 994,392 shares beneficially held by
APA Excelsior III, L.P., 378,958 shares beneficially held by APA Excelsior
III/Offshore, L.P., 785,700 shares beneficially held by The P/A Fund, L.P.,
which is co-managed by APA Pennsylvania Partners II and Fostin Capital
Partners II (see footnotes 4 and 9), and 52,028 shares beneficially held by
Landmark Equity Partners V, L.P. Patricof has shared voting and dispositive
power with respect to 2,159,050 shares. The amount beneficially owned by
Mr. Chefitz also includes options for 1,883 shares exercisable within 60
days after April 12, 2000. Mr. Chefitz is a Senior Vice President of
Patricof & Co. Venture, Inc., which acts as the investment manager for CIN
Venture Nominees, Ltd. Mr. Chefitz disclaims beneficial ownership of all
such shares except to the extent of his pecuniary interest therein.
(12) As reported in the Schedule 13G filed on behalf of Tandem PCS Investments,
L.P., this amount includes 163,555 shares issuable upon exercise of a
warrant. The amount beneficially owned by Mr. Coffey also includes options
for 1,883 shares exercisable within 60 days after April 12, 2000. Mr.
Coffey is a Managing Member of the Special Limited Partner of Tandem PCS
Investments, LP. Mr. Coffey disclaims beneficial ownership of such shares
except to the extent of his pecuniary interest therein.
(13) Includes options for 8,513 shares exercisable within 60 days after April
12, 2000.
(14) Includes options for 4,849 shares exercisable within 60 days after April
12, 2000 and 885 shares issuable upon exercise of a warrant.
(15) Includes options for 834 shares exercisable within 60 days after April 12,
2000.
(16) As reported in the Schedule 13G filed on behalf of HVFM-I, L.P., this
amount includes 1,742,135 shares beneficially held by HVFM-I, L.P. HVFM-I,
L.P., VFAM-I, L.L.C. and Mr. Mullins have shared voting and dispositive
power with respect to such shares. This amount also includes options for
1,883 shares exercisable within 60 days after April 12, 2000. Mr. Mullins
is the President and one of two directors of Venture First Associates of
Melbourne, Inc. the general partner of HVFM-I, L.P. Mr. Mullins disclaims
beneficial ownership of all such shares except to the extent of his
pecuniary interest therein.
(17) Includes options for 98,403 shares exercisable within 60 days after April
12, 2000.
(18) Includes options for 9,387 shares exercisable within 60 days after April
12, 2000.
(19) Includes options for 23,270 shares exercisable within 60 days after April
12, 2000.
(20) Includes options for 19,387 shares exercisable within 60 days after April
12, 2000.
7
<PAGE> 10
EXECUTIVE OFFICERS OF THE COMPANY
The executive officers of the Company are:
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
R. Lee Hamilton, Jr.(1)................................. 41 President and Chief Executive
Officer, Director
Gerald Y. Hattori....................................... 48 Vice President of Finance, Chief
Financial Officer, Treasurer and
Secretary
Glenn A. Ehley.......................................... 38 Senior Vice President of Worldwide
Sales and Marketing
Timothy J. Mahar........................................ 52 Vice President of Marketing and
Business Development
Mark G. Demange......................................... 39 Vice President of Engineering
William J. Lee.......................................... 44 Vice President of Services
</TABLE>
- - ---------------
(1) Biographical information pertaining to Dr. Hamilton is presented above under
"Nominees for Election at 2000 Annual Meeting."
Gerald Y. Hattori has served as Vice President of Finance and Chief
Financial Officer since March 1999 and as Treasurer and Secretary since
September 1999. Prior to joining the Company, Mr. Hattori was Vice President of
Finance, Chief Financial Officer and Treasurer of Nexar Technologies, Inc., a
manufacturer of personal computers, since October 1996. From September 1987 to
October 1996, Mr. Hattori served as Corporate Controller of Sipex Corporation, a
manufacturer of analog semiconductors. Mr. Hattori holds an M.B.A. from New
Hampshire College and a B.S. degree in Business Administration/Accounting from
Merrimack College.
Glenn A. Ehley has served as Senior Vice President of Worldwide Sales and
Marketing since February 2000 and from August 1997 until February 2000 served as
Vice President of Sales and Marketing. Mr. Ehley joined the Company in July 1995
and served as Director of Marketing. Prior to joining the Company, Mr. Ehley
served in several positions at Siemens Stromberg-Carlson, most recently as
Senior Product Marketing Manager. Mr. Ehley received an M.B.A. and M.S. in
Computer Engineering from Florida Atlantic University and received a B.S. in
Computer Science from Illinois Benedictine College.
Timothy J. Mahar has served as Vice President of Marketing and Business
Development since February 2000. Prior to joining the Company, Mr. Mahar served
in several sales and marketing management positions at Siemens Information and
Communications Networks since 1992. From October 1998 to February 2000 he served
as Vice President of Sales and Business Development and from October 1997 to
October 1998 as Vice President of Business Solutions. Mr. Mahar holds an M.S. in
Electrical Engineering and a B.S. in Computer Engineering from the University of
Wisconsin -- Milwaukee.
Mark G. Demange has served as Vice President of Engineering since February
1999. Prior to joining the Company, Mr. Demange served in several positions at
Zenith Electronics Corp. from October 1996 to February 1999, most recently as
Vice President and General Manager of the Cable Modem Business Unit. From June
1989 to October 1996, Mr. Demange held several engineering management positions
in Motorola's Wireless Data Group. Mr. Demange holds an M.B.A. from Northern
Illinois University, an M.S. in Electrical Engineering from Midwest College of
Engineering and a B.S. in Electrical Engineering from Southern Illinois
University. Mr. Demange serves on the board of directors of the Ministry
Potential Discerner, a not-for-profit Illinois corporation with headquarters in
Stickney, Illinois. In this role, he acts as technology advisor to the
corporation.
William J. Lee has served as Vice President of Services since October 1999.
Mr. Lee joined the Company in June 1999 as Director of Services. From January
1985 to June 1999, Mr. Lee served in several capacities with Siemens Information
and Communications Networks, most recently as Director of Systems Integrations
8
<PAGE> 11
Services. Prior to joining Siemens, Mr. Lee was a Lecturer at the Midwest
College of Engineering in Northern Illinois and held various positions with AT&T
Network Systems. Mr. Lee holds a B.S. in Computer Science from Northern Illinois
University.
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The following summary compensation table sets forth information concerning
compensation awarded to, earned by, or paid to (i) the Company's Chief Executive
Officer and (ii) the three highest compensated executive officers who were
serving as executive officers at the end of fiscal 1999 (collectively, the
"Named Executive Officers") for services rendered in all capacities with respect
to the Company's fiscal years ended December 31, 1997, 1998 and 1999:
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
AWARDS(1)
ANNUAL COMPENSATION ------------
------------------------- SECURITIES ALL OTHER
NAME AND FISCAL SALARY BONUS UNDERLYING COMPENSATION
PRINCIPAL POSITION YEAR ($) ($) OPTIONS(#) ($)(2)
------------------ ------ ------- ------ ------------ ------------
<S> <C> <C> <C> <C> <C>
R. Lee Hamilton, Jr......................... 1999 222,173 38,961 346,491 --
President, Chief Executive Officer and 1998 178,154 -- 19,585 --
Director 1997 138,789 52,500 97,744 --
Glenn A. Ehley.............................. 1999 148,824 20,195 75,324 140,806
Senior Vice President of Worldwide Sales and 1998 117,231 -- 10,546 27,978
Marketing 1997 106,333 5,500 57,350 34,793
Mark G. Demange............................. 1999 150,514 60,000 77,545 --
Vice President of Engineering 1998 -- -- -- --
1997 -- -- -- --
Gerald Y. Hattori........................... 1999 125,866 60,000 77,545 --
Vice President of Finance, Chief Financial 1998 -- -- -- --
Officer, Treasurer and Secretary 1997 -- -- -- --
</TABLE>
- - ---------------
(1) Figures in this column show the number of options to purchase shares of the
Company's Common Stock granted. The Company did not grant any restricted
stock awards or stock appreciation rights to any of the Named Executive
Officers during the years shown.
(2) Represents performance-based sales commissions. See "Compensation Committee
Report on Executive Compensation" below.
9
<PAGE> 12
OPTION GRANTS IN LAST FISCAL YEAR
The following table sets forth information concerning individual grants of
stock options to the Named Executive Officers during the fiscal year ended
December 31, 1999:
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
-------------------------- POTENTIAL REALIZABLE VALUE AT
% OF TOTAL ASSUMED
OPTIONS EXERCISE ANNUAL RATES OF STOCK PRICE
SECURITIES GRANTED TO OF APPRECIATION
UNDERLYING EMPLOYEES IN BASE ORIGINAL FOR OPTION TERM(1)
OPTION/SARS FISCAL PRICE EXPIRATION -------------------------------
NAME GRANTED(#) YEAR 1999 ($/SH) DATE 0%($) 5%($)(2) 10%($)(2)
---- ----------- ------------ -------- ---------- ------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
R. Lee Hamilton, Jr.................. 316,361 24% $ 2.39 1/19/09 398,615 1,124,811 2,238,937
30,130 2% $8.629 9/01/09 101,538 328,921 677,772
Glenn R. Ehley....................... 75,324 6% $ 2.39 2/16/09 94,908 267,812 533,080
Gerald Y. Hattori.................... 77,545 6% $ 2.39 3/22/09 97,707 275,709 548,798
Mark G. Demange...................... 77,545 6% $ 2.39 3/08/09 97,707 275,709 548,798
</TABLE>
- - ---------------
(1) Options vest in four equal annual installments. The options in this table
expire ten years after grant.
(2) These columns show the hypothetical value of the options granted at the end
of the option terms if the price of the AirNet Common Stock were to
appreciate annually by 5% and 10%, respectively, based on the grant date
value of the Company's Common Stock.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION
VALUES
The following table sets forth certain information regarding stock option
exercises by the Named Executive Officers during the fiscal year ended December
31, 1999, and stock options held by the Named Executive Officers at December 31,
1999:
<TABLE>
<CAPTION>
NO. OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED,
SHARES OPTIONS HELD AT IN-THE-MONEY OPTIONS AT
ACQUIRED FISCAL YEAR-END FISCAL YEAR-END(2)
ON VALUE --------------------------- ------------------------------
EXERCISE REALIZED EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
NAME (#) ($)(1) (#) (#) ($) ($)
---- -------- -------- ----------- ------------- ----------- ----------------
<S> <C> <C> <C> <C> <C> <C>
R. Lee Hamilton, Jr...................... 7,533 $104,962 113,274 375,595 $4,007,010 $12,613,321
Glenn R. Ehley........................... 15,834 $220,625 30,698 104,318 $1,078,687 $ 3,579,844
Gerald Y. Hattori........................ 0 $ 0 0 77,545 $ 0 $ 2,635,366
Mark G. Demange.......................... 0 $ 0 0 77,545 $ 0 $ 2,635,366
</TABLE>
- - ---------------
(1) Calculated based on the fair market value of the Company's stock on the date
of exercise minus the exercise price, multiplied by the number of shares
issued upon exercise of the options.
(2) Calculated by determining the difference between the exercise price of the
options and $36.375, the closing price of the Company's Common Stock on
December 31, 1999.
EMPLOYMENT AND OTHER COMPENSATORY ARRANGEMENTS
In October 1999, the Company entered into an Employee Noncompete and
Post-Termination Benefits Agreement with Dr. Hamilton. Pursuant to this
Agreement, Dr. Hamilton agreed that he will not compete with the Company for a
period of one year following any termination of his employment, and the Company
agreed to continue to provide him with his regular weekly salary and benefits
during the one year noncompetition period provided that his termination was not
for cause. Notwithstanding the foregoing, Dr. Hamilton may elect to terminate
the noncompetition period after nine months, in which case his right to continue
receiving salary and benefits would also terminate. The Agreement also provides
for accelerated vesting and an extended exercise period with respect to stock
options held by Dr. Hamilton at the time of termination of his employment
without "cause" or for "good reason" (each as defined in the Agreement).
In addition, the Company and each of Messrs. Ehley, Hattori, Demange, and
Dr. Hamilton have entered into an Amendment of the Incentive Stock Option
Agreements to which each named executive officer is a party (the "Amendment").
Upon the occurrence of a "termination event" or a "change in control" (each as
10
<PAGE> 13
defined in the Amendment), the Amendment provides in each case for accelerated
vesting and an extended exercise period with respect to the stock options held
by each such executive officer.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
During 1999, the Company completed the following transactions involving
members of the Board of Directors and also completed its initial public offering
(the "IPO"). At the closing of the IPO on December 10, 2000, the Company's
shares of preferred stock, including the preferred stock held by each incumbent
member of the Board of Directors and each investment fund represented by a
member of the Board of Directors, outstanding before the closing of IPO were
automatically converted into shares of Common Stock.
1999 Bridge Financing
In early June 1999, the Company closed on loans in an aggregate amount of
$800,000 from certain existing stockholders or related affiliates as follows:
The P/A Fund, L.P., APA Excelsior III, L.P., Coutts & Co. (Jersey) Ltd.,
Custodian for APA Excelsior III/Offshore, L.P. and CIN Venture Nominees, Ltd.
($200,000); HVFM-I, L.P. ($200,000); Adams Capital Management, L.P. ($200,000);
and SCP Private Equity Partners ($200,000). The loans were evidenced by demand
promissory notes and accrued interest at the prime rate plus 2% per annum. The
demand notes were canceled and exchanged for convertible promissory notes as
part of the initial closing of the Company's convertible promissory notes and
warrant offering.
In mid-June 1999, the Company closed on $6.0 million of convertible
promissory notes along with warrants to purchase approximately 490,663 shares of
Common Stock. In July and August 1999, the Company closed on an additional
$338,187 of convertible promissory notes along with warrants to purchase
approximately 27,656 shares of Common Stock. All of the warrants have an
exercise price of $3.67 per share. The purchasers of the convertible promissory
notes and warrants, all of whom are existing stockholders, invested in this
offering as follows: SCP Private Equity Partners ($2,500,000); Adams Capital
Management, Inc. ($600,000); The P/A Fund, L.P., APA Excelsior III, L.P., Coutts
& Co. (Jersey) Ltd., Custodian for APA Excelsior III/Offshore, L.P. and CIN
Venture Nominees, Ltd. ($300,000); HVFM-I, L.P. ($600,000); Tandem PCS
Investments, L.P. ($2,000,000); Milo D. Harrison ($10,817); and other existing
investors ($338,187). Mr. Harrison is currently a Director of the Company. The
convertible promissory notes were secured by a security interest in all of the
Company's assets.
The principal and accrued interest under the outstanding convertible
promissory notes was automatically converted into shares of Series G Preferred
Stock upon the closing of the Series G financing.
Series G Financing
In September 1999, the Company raised $30.0 million in gross proceeds from
the sale of Series G Preferred Stock to 45 investors, at a per share purchase
price of $0.13, including conversion of principal and accrued interest under
$6.3 million of the convertible promissory notes issued in the 1999 bridge
financing. The lead outside investors in the Series G offering were Mellon
Ventures, Inc. ($5,000,000), Peak Telecommunications Investments, LLC
($3,987,157) and Peak Telecommunications Investments II, LLC ($2,199,907) and
Damac Investors Inc. ($1,000,000) and Damac Investors (III) Inc. ($1,000,000)
Milo D. Harrison ($107), and a substantial portion of the funding was provided
by existing stockholders, including Tandem PCS Investments, L.P. ($48,027),
HVFM-I, L.P. ($2,442,308), Adams Capital Management, L.P. ($490,045), SCP
Private Equity Partners ($1,860,034.25), The P/A Fund, L.P. ($2,401), APA
Excelsior III, L.P. ($142,953), Coutts & Co. (Jersey) Ltd., Custodian for APA
Excelsior III/Offshore, L.P. ($1,228), CIN Venture Nominees, Ltd. ($173) and
Harris Corporation ($4,252,313).
COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION
The following is a report of the Compensation Committee of the Board of
Directors describing the compensation policies applicable to the executive
officers during the year ended December 31, 1999. The
11
<PAGE> 14
Compensation Committee recommends salaries, incentives and other forms of
compensation for Directors and officers, administers the Company's incentive
compensation and benefit plans, including stock plans, and recommends policies
relating to such incentive compensation and benefit plans. Executive officers
who are also Directors have not participated in deliberations or decisions
involving their own compensation.
COMPENSATION PHILOSOPHY
The general philosophy of the Compensation Committee is to provide
executive compensation programs, including salary, bonus and equity incentive
programs, that will enhance the profitability of the Company and its stockholder
value by aligning the financial interests of the Company's executives with those
of its stockholders. The responsibilities of the Compensation Committee are (i)
to make recommendations with respect to executive officer and senior management
compensation and incentive compensation programs; (ii) subject to limitations,
to administer the Company's stock option plans including the issuance of stock
in connection with the Company's incentive bonus plans; and (iii) to review
management development and succession programs.
The overall goal of the Compensation Committee is to ensure that
compensation policies are consistent with the Company's strategic business
objectives and provide incentives for the attainment of these objectives. The
compensation program includes three components:
- Base salary, which is intended to provide a stable annual salary at a
level consistent with individual contributions.
- Variable pay, which links bonus and other short-term incentives to the
performance of the Company and the individual executive.
- Stock ownership and similar long-term incentives, which encourage actions
to maximize stockholder value.
In addition, Mr. Ehley receives sales commissions.
Another goal of the Compensation Committee is to ensure that the Chief
Executive Officer and other executives are compensated in a manner that is
consistent with the Company's compensation strategy, that is competitive with
other companies in the industry and that is equitable within the Company. The
Compensation Committee believes that compensation programs must be structured to
attract and retain talented executives.
BASE SALARY
It is the Compensation Committee's policy to position base executive
salaries annually at levels that are competitive within the industry, with
consideration for industry standards, individual performance and scope of
responsibility in relation to other officers and key executives within the
Company. These factors are considered subjectively in the aggregate, and none of
the factors is accorded a specific weight. In selected cases, other factors may
also be considered.
In establishing compensation guidelines with respect to base salary, the
Company has reviewed data from various surveys prepared by independent
organizations to assist it in setting salary levels competitive with those of
other industry companies. While it is the Compensation Committee's intent to
continue to review periodically base salary information to monitor competitive
ranges within the applicable market, including consideration of the Company's
geographic location and individual job responsibilities, it is further the
intent of the Compensation Committee to maintain a close relationship between
the Company's performance and its executive officers' total compensation.
PERFORMANCE BONUSES
The Compensation Committee also sets the bonuses of the executive officers
and consults with the Chief Executive Officer, who is a member of the Committee,
regarding the Company's bonus policies. Currently, the Company maintains certain
bonus programs for key corporate employees for the payment of cash bonuses
12
<PAGE> 15
based on a combination of company performance in relation to predetermined
objectives and/or individual executive performance during the year. The purpose
of these programs is (i) to offer incentives to key management to (A) reward
them for achieving financial goals and (B) further the alignment of interests of
key management with our stockholders, and (ii) to provide incentives to
operations management to maintain a high level of profitability and asset
utilization and to achieve the Company's financial goals in individual markets.
Bonuses for key corporate employees are based on the achievement of certain
financial and operational objectives, and each executive participant's bonus
award is calculated as a percentage of base salary, pro-rated by length of
service during the year, and ranges from 2.5% to 25% of base salary.
During the early months of each year, the Compensation Committee
establishes financial and operational target objectives for the year. Individual
payouts in relation to targeted objectives are adjusted upward or downward based
on the Company's overall performance in relation to those objectives. A
commission-based sales executive is eligible for 50% of the performance bonus
which such executive would have achieved.
SALES COMMISSIONS
Mr. Ehley is awarded commissions based on the level which he attains of
sales of the Company's products. The sales commissions are paid on each sale and
are calculated as up to 1% of the dollar value of such sale. In addition, Mr.
Ehley is paid a commission of 50% of the sales commissions earned by his sales
force (i.e., up to an additional 0.5%). The Company pays out the applicable
portion of a sales commission only after attainment of each contractual
milestone.
STOCK OPTIONS AND OTHER AWARDS
The Compensation Committee utilizes stock options and other equity awards
as a key incentive because they provide executives with the opportunity to
become stockholders and thereby share in the long-term appreciation in the value
of the Company's Common Stock. The Compensation Committee believes that
management employees should be rewarded with a proprietary interest in the
Company for continued outstanding long-term performance and to attract, motivate
and retain qualified and capable executives. The Compensation Committee believes
these awards are beneficial to the Company and the stockholders because they
directly align the interests of the executives with those of other stockholders.
The Board of Directors adopted the AirNet Communications Corporation 1999
Equity Incentive Plan (the "1999 Plan"), effective as of September 1, 1999.
Under the 1999 Plan, the Compensation Committee, or such other committee of the
Board of Directors as it may designate, may grant, at its discretion, awards to
participants in the form of non-qualified stock options, incentive stock
options, a combination thereof, stock appreciation rights, restricted shares,
performance awards or other equity incentives. The maximum number of shares
subject to the 1999 Plan is currently 3,206,842 shares.
The Compensation Committee determines the awards, if any, to be granted
from time to time to executives pursuant to the 1999 Plan. Substantially all of
the awards have been incentive stock options, which are granted at no less than
the prevailing market value. Accordingly, these awards will only benefit
executives if the price of the Common Stock increases over the term of the
applicable option. The Company's stock options typically vest ratably over a
period of four years. Options are granted as compensation for performance and as
an incentive to promote the future growth and profitability of the Company. In
determining the relationship between the options to be granted to executive
employees and the compensation paid by competitors to their executives, the
Compensation Committee takes into account the outstanding options already held
by each individual executive officer, and the projected value of the options
based on historical and assumed appreciation rates of the shares of Common
Stock.
COMPENSATION OF CHIEF EXECUTIVE OFFICER
The compensation for R. Lee Hamilton, Jr., the Company's Chief Executive
Officer, is determined based on a number of factors, including comparative
salaries of chief executive officers of competitive companies, Dr. Hamilton's
individual performance and the Company's performance as measured against the
stated objectives. The 1999 compensation of Dr. Hamilton consisted of base
salary, bonus and option grants. In
13
<PAGE> 16
establishing the 1999 bonus for Dr. Hamilton, the Compensation Committee
considered (i) his oversight of operating performance of the company, (ii) his
oversight of the financial performance of the company, and (iii) his success in
meeting key strategic goals.
DEDUCTIBILITY OF EXECUTIVE COMPENSATION
The Compensation Committee has considered the impact of Section 162(m) of
the Internal Revenue Code adopted under the Omnibus Budget Reconciliation Act of
1993, which section disallows a deduction for any publicly held corporation for
individual compensation exceeding $1 million in any taxable year for the Chief
Executive Officer and four other most highly compensated executive officers,
unless such compensation meets the requirements for the "performance-based"
exception to the general rule. Since the cash compensation paid by the Company
to each of its executive officers is expected to be well below $1 million and
the Company believes that options granted under the 1999 Plan will meet the
requirements for qualifying as performance-based, the Compensation Committee
believes that this section will not affect the tax deductions available to the
Company. It will be the Compensation Committee's policy to qualify, to the
extent reasonable, the executive officers' compensation for deductibility under
applicable tax law.
April 19, 2000
RESPECTFULLY SUBMITTED,
COMPENSATION COMMITTEE
OF THE BOARD OF DIRECTORS
Joel P. Adams, Chairman
James W. Brown,
Richard G. Coffey and
R. Lee Hamilton, Jr.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
No interlocking relationship exists between the Board of Directors or the
Compensation Committee and the Board of Directors or Compensation Committee of
any other company, nor has any such interlocking relationship existed in the
past. Messrs. Brown, Adams, Chefitz, Coffey, and Mullins are affiliated with SCP
Private Equity Partners, L.P., Adams Capital Management, Inc., Patricof & Co.
Ventures, Inc., Tandem PCS Investments, L.P., HVFM-I, L.P., respectively, which
each holds more than 5% of the outstanding and issued shares of the Company's
Common Stock. See "Certain Relationships and Related Transactions" above.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Based solely on its review of copies of reports filed by persons
("Reporting Persons") required to file such reports pursuant to Section 16(a) of
the Exchange Act, the Company believes that all filings required to be made by
Reporting Persons of the Company were timely made in accordance with the
requirements of the Exchange Act.
PROPOSAL NO. 2
RESTATEMENT OF THE CERTIFICATE OF INCORPORATION
On March 21, 2000, the Board of Directors unanimously adopted the Seventh
Amended and Restated Certificate of Incorporation, a copy of which is attached
as Appendix A, to delete from the Sixth Amended and Restated Certificate of
Incorporation (the "Current Charter") provisions relating to the rights,
preferences, privileges and restrictions of the Company's voting convertible
preferred stock which expired as a result of the IPO and other provisions which
have expired or are no longer applicable to the Company.
14
<PAGE> 17
Pursuant to the provisions of the Current Charter, all shares of the
Company's convertible preferred stock which were outstanding at the time of the
IPO (the "Pre-IPO Convertible Preferred Stock") were automatically converted
into shares of the Company's Common Stock, and all rights, preferences,
privileges and restrictions relating to the Pre-IPO Convertible Preferred Stock
and certain provisions relating to shares of the Company's Common Stock which
were outstanding prior to the IPO expired and are no longer applicable. The
Current Charter further provides that following the IPO, the Company is no
longer authorized to issue shares of the Pre-IPO Convertible Preferred Stock and
the Company's capital structure shall consist of 50,000,000 authorized shares of
Common Stock and 10,000,000 authorized shares of "blank check" Preferred Stock,
with each class of stock having rights, preferences, privileges and restrictions
separate and distinct from the shares of each respective class which were
outstanding prior to the IPO.
Since the rights, preferences, privileges and restrictions relating to the
Pre-IPO Preferred Stock and certain pre-IPO rights and restrictions relating to
the Company's Common Stock have expired and are no longer applicable and the
Company is no longer authorized to issue shares of the Pre-IPO Convertible
Preferred Stock, the Board of Directors believes that the provisions relating to
these rights, preferences, privileges and restrictions should be deleted from
the Current Charter. This will eliminate any confusion with the Company's
capital structure following the IPO and provide for a more concise Certificate
of Incorporation.
For the reasons stated above, THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS
THAT STOCKHOLDERS VOTE "FOR" APPROVAL OF THE PROPOSED SEVENTH AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION.
PROPOSAL NO. 3
RATIFICATION OF SELECTION OF INDEPENDENT AUDITORS
The Board of Directors has selected the firm of Deloitte & Touche LLP as
the Company's independent auditors for the current fiscal year. Although
stockholder approval of the Board of Directors' selection of Deloitte & Touche
LLP is not required by law, the Board of Directors believes that it is advisable
to give stockholders an opportunity to ratify this selection. If this proposal
is not approved at the Annual Meeting, the Board of Directors may reconsider its
selection.
On August 6, 1999, the Company engaged Deloitte & Touche LLP as its
independent accountants for the fiscal year ended December 31, 1998 to replace
Ernst & Young LLP, whom the Company dismissed as its independent accountants
effective August 5, 1999. The decision to change independent accountants was
approved by the Board of Directors upon the recommendation of the Audit
Committee.
The reports of Ernst & Young on the Company's financial statements for 1996
and 1997 did not contain an adverse opinion or disclaimer of opinion and were
not qualified or modified as to uncertainty, audit scope or accounting
principles. In connection with the audits of the Company's financial statements
for the fiscal years ended December 31, 1996 and 1997, and in the subsequent
interim period preceding the dismissal of Ernst & Young, except as disclosed in
the following paragraph, there were no disagreements with Ernst & Young on any
matters of accounting principles or practices, financial statement disclosure,
or auditing scope or procedure which, if not resolved to the satisfaction of
Ernst & Young, would have caused Ernst & Young to make a reference to the matter
in their report. During the two most recent fiscal years and subsequent interim
period preceding the dismissal of Ernst & Young, the Company has not been
advised of any matters described in Regulation S-K, Item 304(a)(1)(v) of the
Securities Exchange Act of 1934, as amended.
During 1999, the Company asked Ernst & Young for advice about the
possibility of changing revenue recognition policies for the year ending
December 31, 1999 and thereafter. The Company expressed its opinion that revenue
should be recognized upon shipment of the Company's products. Ernst & Young
informed the Company that the Company could not recognize revenue until all
uncertainties about customer acceptance had been resolved pursuant to the
requirements of American Institute of Certified Public Accountants ("AICPA")
Statement of Position 97-2.
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<PAGE> 18
Although the audit committee of the Board of Directors had preliminary
discussions with Ernst & Young regarding the Company's revenue recognition
policies in a February 1999 meeting, neither the audit committee nor the Board
of Directors had any subsequent discussions with Ernst & Young.
The Company has not changed its revenue recognition policies.
The Company authorized Ernst & Young to respond fully to the inquiries of
Deloitte & Touche regarding the Company's revenue recognition policies. The
Company requested that Ernst & Young furnish it with a letter addressed to the
Securities and Exchange Commission stating whether or not they agree with the
above statements. A copy of such letter is incorporated by reference to the form
S-1 registration statement filed with the Securities and Exchange Commission on
September 24, 1999.
Prior to engaging Deloitte & Touche as the Company's new independent
accountants:
The Company requested advice from Deloitte & Touche concerning the revenue
recognition issues referenced above. Deloitte & Touche did not provide the
Company with advice.
The Company did not consult with Deloitte & Touche regarding the type of
audit opinion that might be rendered by them or items that were or should have
been subject to the AICPS's Statement on Auditing Standards No. 50, "Reports on
the Application of Accounting Principles."
The Company requested that Deloitte & Touche review the above disclosures
regarding the Company's change in accountants and gave them the opportunity to
furnish the Company with a letter addressed to the Securities and Exchange
Commission in which Deloitte & Touche might have included new information,
clarified the Company's statements on the change in accountants or disclosed the
respects in which they disagree with the statements made by the Company
regarding the Company's change in accountants. Deloitte & Touche elected not to
submit such a letter to the Securities and Exchange Commission.
Representatives of Deloitte & Touche LLP are expected to be present at the
Annual Meeting, will have the opportunity to make a statement if they desire to
do so and will also be available to respond to appropriate questions from
stockholders.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR"
RATIFICATION OF THE SELECTION OF DELOITTE & TOUCHE LLP AS THE COMPANY'S
INDEPENDENT AUDITORS FOR THE CURRENT FISCAL YEAR.
STOCKHOLDERS PROPOSALS AND NOMINATIONS
Proposals on matters appropriate for stockholder consideration consistent
with the regulations of the Securities and Exchange Commission submitted by
stockholders must be received at AirNet's principal executive offices on or
before December 31, 2000. A timely proposal will be included in the proxy
materials and form of proxy for consideration by the stockholders at the 2001
Annual Meeting.
A stockholder wishing to nominate a candidate for election should deliver a
written notice of nomination to the Company's Secretary at the address below for
receipt no later than December 31, 2000. The notice of nomination is required to
contain certain information about both the nominee and the stockholder making
the nomination as set forth in the Company's bylaws. The stockholder is also
required to attend the meeting in person or by proxy to nominate the person or
persons specified in the notice. A nomination which does not comply with all the
requirements set forth in the bylaws will not be considered.
Stockholder proposals or nominations may be mailed to Gerald Y. Hattori,
Secretary, AirNet Communications Corporation, 100 Rialto Place, Suite 300,
Melbourne, Florida 32901.
OTHER MATTERS
The Board of Directors of the Company is not aware of any other matters
which may come before the meeting. It is the intention of the persons named in
the enclosed proxy to vote the proxy in accordance with
16
<PAGE> 19
their best judgment if any other matters should properly come before the
meeting, including voting for election of a Director in place of any person
named in the proxy who may not be available for election.
The cost of soliciting proxies will be borne by the Company. The
solicitation of proxies by mail may be followed by solicitation of certain
stockholders by officers, Directors, or employees of the Company by telephone or
in person.
If you may not be present at the meeting, it would be appreciated if you
would complete, date, and sign the enclosed proxy and return it promptly in the
enclosed envelope.
Melbourne, Florida
May 1, 2000
17
<PAGE> 20
APPENDIX A
AIRNET COMMUNICATIONS CORPORATION
PROPOSED SEVENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
A-1
<PAGE> 21
SEVENTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AIRNET COMMUNICATIONS CORPORATION
-i-
<PAGE> 22
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I................................................... 1
ARTICLE II.................................................. 1
ARTICLE III................................................. 1
ARTICLE IV.................................................. 1
A. CLASSES OF STOCK......................................... 1
B. RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF
COMMON STOCK.............................................. 1
1. Dividends.............................................. 1
2. Stock Split, Reclassification, etc..................... 2
3. Liquidation............................................ 2
4. Voting................................................. 2
5. No Pre-emptive or Subscription Rights.................. 2
C. RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF
PREFERRED STOCK........................................... 2
ARTICLE V................................................... 3
ARTICLE VI.................................................. 3
ARTICLE VII................................................. 4
ARTICLE VIII................................................ 4
ARTICLE IX.................................................. 4
ARTICLE X................................................... 4
</TABLE>
-ii-
<PAGE> 23
SEVENTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AIRNET COMMUNICATIONS CORPORATION
Pursuant to the provisions of Sections 242 and 245 of the General
Corporation Law of Delaware, the undersigned Corporation adopts the following
Seventh Amended and Restated Certificate of Incorporation:
FIRST: The name of the Corporation is AirNet Communications Corporation
(the "Corporation").
SECOND: The following Seventh Amended and Restated Certificate of
Incorporation was adopted by the Board of Directors and the stockholders of the
Corporation in accordance with Sections 242 and 245 of the General Corporation
Law of Delaware.
The Restated Certificate of Incorporation of the Corporation (originally
filed under the name of Overture Systems, Inc. incorporated on January 11,
1994), as previously amended, is hereby deleted in its entirety and is amended
and restated as follows:
ARTICLE I
The name of the Corporation is AirNet Communications Corporation.
ARTICLE II
The registered office of the Corporation in the State of Delaware is
located at The Prentice-Hall Corporation System, Inc., 1013 Centre Road, in the
City of Wilmington, County of New Castle. The name of the registered agent at
such address is The Prentice-Hall Corporation System, Inc.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
A. CLASSES OF STOCK. The aggregate number of shares of capital stock which
the Corporation shall have authority to issue is 60,000,000 shares, consisting
of two classes of capital stock:
(a) 50,000,000 shares of Common Stock, par value $.001 per share ("Common
Stock");
(b) 10,000,000 shares of Preferred Stock, par value $.01 per share
("Preferred Stock").
B. RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF COMMON STOCK.
Notwithstanding any provision to the contrary contained herein, the rights,
preferences, privileges and restrictions granted to and imposed upon Common
Stock are set forth in this ARTICLE IV.B. Except as otherwise expressly provided
in this ARTICLE IV.B., all shares of Common Stock shall be identical and shall
entitle the holders thereof to the same rights and privileges.
1. Dividends. When, as and if dividends on Common Stock are declared by
the Corporation's Board of Directors, whether payable in cash, in property or in
securities of the Corporation, the holders of Common Stock shall be entitled to
share equally in and to receive, in accordance with the number of shares of
Common Stock held by each such holder, all such dividends.
Dividends payable under this Article IV.B. shall be paid to the holders of
record of the outstanding Common Stock as their names shall appear on the stock
register of the Corporation on the record date fixed by the Board of Directors
of the Corporation in advance of declaration and payment of each dividend. Any
Common Stock issued as a dividend pursuant to this Article IV.B. shall, when so
issued, be duly authorized,
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validly issued, fully paid and non-assessable and free of all liens and charges.
The Corporation shall not issue fractions of Common Stock on payment of such
dividend but shall issue a whole number of shares to such holder of Common Stock
rounded up or down in the Corporation's sole discretion to the nearest whole
number, without compensation to the stockholder whose fractional share has been
rounded down or from any stockholder whose fractional share has been rounded up.
Notwithstanding anything contained herein to the contrary, no dividends on
Common Stock shall be declared by the Corporation's Board of Directors or paid
or set apart for payment by the Corporation at any time that such declaration,
payment, or setting apart is prohibited by applicable law.
2. Stock Split, Reclassification, etc. The Corporation shall not in any
manner subdivide (by any stock split, reclassification, stock dividend,
recapitalization or otherwise) or combine the outstanding shares of one class of
Common Stock unless the outstanding shares of all classes of Common Stock shall
be proportionately subdivided or combined.
3. Liquidation. Upon any voluntary or involuntary liquidation, dissolution
or winding-up of the affairs of the Corporation, after payment shall have been
made to holders of outstanding Preferred Stock, if any, of the full amount of
which they are entitled pursuant to this Certificate of Incorporation and any
resolutions that may be adopted from time to time by the Corporation's Board of
Directors, in accordance with Article IV.C. below (for the purpose of fixing the
voting rights, designations, preferences and relative participating, optional or
other special rights of any class or series of Preferred Stock), the holders of
Common Stock shall be entitled, to the exclusion of the holders of Preferred
Stock, if any, to share ratably, in accordance with the number of shares of
Common Stock held by each such holder, in all remaining assets of the
Corporation available for distribution among the holders of Common Stock,
whether such assets are capital, surplus, or earnings. For the purposes of this
Article IV.B., neither the consolidation or merger of the Corporation with or
into any other corporation or corporations in which the stockholders of the
Corporation receive capital stock and/or other securities (including debt
securities) of the acquiring corporation (or of the direct or indirect parent
corporation of the acquiring corporation), nor the sale, lease or transfer by
the Corporation of all or any part of its assets, nor the reduction of the
capital stock of the Corporation, shall be deemed to be a voluntary or
involuntary liquidation, dissolution, or winding-up of the Corporation as those
terms are used in this Article IV.B.
4. Voting. Each holder of Common Stock shall be entitled to one vote for
each share of such stock issued and outstanding and registered in such holder's
name and shall be entitled to vote upon such matters and in such manner as may
be provided by Delaware law and this Certificate of Incorporation.
5. No Pre-emptive or Subscription Rights. No holder of Common Stock shall
be entitled to pre-emptive or subscription rights.
C. RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF PREFERRED STOCK.
Shares of Preferred Stock may be issued from time to time in one or more series
as may be determined by the Board of Directors of the Corporation. Subject to
the provisions of this Certificate of Incorporation and this Article IV.C., the
Board of Directors of the Corporation is authorized to determine or alter the
rights, preferences, privileges and restrictions granted to or imposed upon any
wholly unissued class or series of Preferred Stock and, within the limits and
restrictions stated in any resolution or resolutions of the Board of Directors
of the Corporation originally fixing the number of shares constituting any such
additional series, to increase or decrease (but not below the number of shares
of such series then outstanding) the number of shares of any such additional
series subsequent to the issue of shares of that series.
Authorized and unissued shares of Preferred Stock may be issued with such
designations, voting powers, preferences and relative participating optional or
other special rights, and qualifications, limitations and restrictions on such
rights, as the Board of Directors of the Corporation may authorize by
resolutions duly adopted prior to the issuance of any shares of any class or
series of Preferred Stock, including, but not limited to: (i) the distinctive
designation of each series and the number of shares that will constitute such
series; (ii) the voting rights, if any, of shares of such series and whether the
shares of any such series having voting rights shall have multiple votes per
share; (iii) the dividend rate on the shares of such series, any restriction,
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<PAGE> 25
limitation or condition upon the payment of such dividends, whether dividends
shall be cumulative and the dates on which dividends are payable; (iv) the
prices at which, and the terms and conditions on which, the shares of such
series may be redeemed, if such shares are redeemable; (v) the purchase or
sinking fund provisions, if any, for the purchase or redemption of shares of
such series; (vi) any preferential amount payable upon shares of such series in
the event of the liquidation, dissolution or winding-up of the Company or the
distribution of its assets; and (vii) the prices or rates of conversion at
which, and the terms and conditions on which, the shares are convertible.
Any and all Preferred Stock issued and for which full consideration has
been paid or delivered shall be deemed fully paid stock and the holder thereof
shall not be liable for any further payment thereon.
ARTICLE V
The Board of Directors shall have the power, in addition to the
stockholders, to make, repeal, alter, amend and rescind any or all of the bylaws
of the Corporation.
ARTICLE VI
The Board of Directors shall be constituted as follows:
(i) The number of directors which will constitute the whole Board of
Directors of the Corporation shall be fixed exclusively by one or more
resolutions adopted by the Board of Directors of the Corporation or as otherwise
provided in the bylaws of the Corporation.
(ii) At the first annual meeting of stockholders following the
Corporation's fiscal year ended December 31, 1999, the nominees for directors
shall be divided into three classes, as nearly equal in number as possible,
designated as Class I, Class II, and Class III, respectively, and assigned to
such classes in accordance with a resolution or resolutions adopted by the Board
of Directors. At such annual meeting of stockholders, (i) the Class I directors
shall be nominated for election for a term to expire at the third succeeding
annual meeting of stockholders following their election; (ii) the Class II
directors shall be nominated for election for a term to expire at the second
succeeding annual meeting of stockholders following their election, and (iii)
the Class III directors shall be nominated for election for a term to expire at
the first annual meeting of stockholders following their election. At each
succeeding annual meeting of stockholders, directors shall be elected for a term
to expire at the third succeeding annual meeting of stockholders following their
election to succeed the directors of the class whose terms expire at such annual
meeting.
(iii) Notwithstanding the foregoing provisions of this ARTICLE VI, each
director shall serve until his successor is duly elected and qualified or until
his death, resignation or removal. Neither the Board of Directors nor any
individual director may be removed without cause. Subject to any limitation
imposed by law, any individual director or directors may be removed with cause
by the holders of a majority of the voting power of the corporation entitled to
vote at an election of directors. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
(iv) In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors shall have the power to make, adopt, amend or
repeal the Bylaws, or adopt new Bylaws for this Corporation, by a resolution
adopted by a majority of the directors.
(v) Vacancies in the Board of Directors may be filled by a majority of the
remaining directors, though less than a quorum, or by a sole remaining director.
(vi) Elections of directors need not be by written ballot unless the bylaws
of the Corporation shall so provide.
3
<PAGE> 26
ARTICLE VII
Meetings of stockholders may be held within or without the State of
Delaware, as the bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the General Corporation Law of Delaware)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the bylaws of the Corporation.
ARTICLE VIII
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of Title 8 of the General Corporation
Law of Delaware, or (iv) for any transaction from which the director derived any
improper personal benefit. The foregoing sentence notwithstanding, if the
General Corporation Law of Delaware is hereafter amended to authorize further
limitations of the liability of a director of a corporation, then a director of
the Corporation, in addition to the circumstances in which a director is not
personally liable set forth in the preceding sentence, shall not be liable to
the fullest extent permitted by the General Corporation Law of Delaware as so
amended. Any repeal or modification of the foregoing provisions of this Article
VIII by the stockholders of the Corporation shall not adversely affect any right
or protection of a director of the Corporation existing at the time of such
repeal or modification.
ARTICLE IX
The Corporation shall indemnify and hold harmless any director and officer
of the Corporation from and against any and all expenses and liabilities that
may be imposed upon or incurred by such person in connection with, or as a
result of, any proceeding in which such person may become involved, as a party
or otherwise, by reason of the fact that such person is or was such a director
or officer of the Corporation, whether or not such person continues to be such
at the time such expenses and liabilities shall have been imposed or incurred.
It is the intention of this Article IX to provide indemnification to the fullest
extent permitted by the laws of the State of Delaware, as they may be amended
from time to time.
ARTICLE X
Subject to the provisions contained herein, the Corporation reserves the
right to amend, alter, change or repeal any provision contained in this Seventh
Amended and Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
This Seventh Amended and Restated Certificate of Incorporation was duly
adopted in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware by the Board of Directors and the
stockholders of the Corporation.
4
<PAGE> 27
I, THE UNDERSIGNED, being the President and Chief Executive Officer of the
Corporation, hereby declare, under penalties of perjury, that this is the act
and deed of the Corporation and the facts herein stated are true, and
accordingly, I have executed this Seventh Amended and Restated Certificate of
Incorporation as of the day of June, 2000.
AIRNET COMMUNICATIONS CORPORATION
By:
--------------------------------------
Print Name: R. Lee Hamilton, Jr.
Title: President and Chief Executive
Officer
ATTESTED:
- - ---------------------------------------------------------
Janice L. Fitzgerald
Assistant Secretary
5
<PAGE> 28
APPENDIX B
AIRNET COMMUNICATIONS CORPORATION
PROXY
Proxy for the Annual Meeting of Stockholders to be held on June 20, 2000.
The undersigned, revoking all prior proxies, hereby appoint(s) Joel P.
Adams, James W. Brown, Richard G. Coffey, Robert M. Chefitz, Bruce R. DeMaeyer,
R. Lee Hamilton, Jr., and G. Michael Kirby, and each of them, with full power of
substitution, as proxies to represent and vote, as designated herein, all shares
of Common Stock of AirNet Communications Corporation (the "Company") which the
undersigned would be entitled to vote if personally present at the Annual
Meeting of Stockholders of the Company to be held at the Hilton Airport Hotel,
200 Rialto Place, Melbourne, Florida, 32901 on June 20, 2000 at 10:00 a.m.,
local time, and at any adjournment thereof.
This proxy when properly executed will be voted in the manner directed by the
undersigned stockholder(s). IF NO DIRECTION IS GIVEN, THIS PROXY WILL BE VOTED
FOR PROPOSALS 1, 2 AND 3. Attendance of the undersigned at the meeting or any
adjournment thereof will not be deemed to revoke this proxy unless the
undersigned shall revoke this proxy in writing before it is exercised or
affirmatively indicate his intent to vote in person.
1. To elect nine Directors to the Board of Directors, with three Directors
elected for a three-year term, three Directors elected for a two-year term and
three Directors elected for a one-year term:
Class I: G. Michael Kirby, Leslie D. Shroyer, J. Douglass Mullins
Class II: R. Lee Hamilton, Jr., Bruce R. DeMaeyer, James W. Brown
Class III: Joel P. Adams, Robert M. Chefitz, Richard G. Coffey
[_] FOR ALL [_] WITHHOLD AUTHORITY
NOMINEES TO VOTE FOR ALL NOMINEES
[_] FOR ALL NOMINEES EXCEPT FOR THE FOLLOWING:
2. To approve the proposed Seventh Amended and Restated Certificate of
Incorporation of the Company:
[_] FOR [_] AGAINST [_] ABSTAIN
3. To ratify the selection of Deloitte & Touche LLP as the Company's independent
auditors for the current fiscal year:
[_] FOR [_] AGAINST [_] ABSTAIN
<PAGE> 29
Please sign exactly as name appears hereon. When shares
are held by joint owners, both should sign. When signing
as attorney, executor, administrator, trustee or
guardian, please give title as such. If a corporation or
a partnership, please sign by authorizing person.
Signature:
--------------------------
Date:
-------------------------------
Signature:
--------------------------
Date:
-------------------------------
THIS PROXY IS SOLICITED
ON BEHALF OF THE BOARD OF
DIRECTORS OF THE COMPANY
