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Exhibit 99.2
STOCKHOLDER AGREEMENT
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 __________________
("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.
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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.
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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
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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.
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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
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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.]
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IN WITNESS WHEREOF, the parties have caused this Stockholder Agreement
to be executed as of the date first above written.
CISCO SYSTEMS, INC. STOCKHOLDER:
------------
By: By:
Name: Name:
Title: Title
Address:
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OSPREY ACQUISITION CORPORATION
By:
Name:
- ----
Title:
Total Number of Shares of Company Capital Stock owned on the date hereof:
Common Stock:
[SIGNATURE PAGE TO STOCKHOLDER AGREEMENT]
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EXHIBIT A
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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:
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|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.]
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This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: November 8, 1999
By:
Name:
Title:
Shares beneficially owned:
_________ shares of Company Common Stock
[SIGNATURE PAGE TO IRREVOCABLE PROXY]