Exhibit 10.2
CONSENT, WAIVER AND LOCK-UP
AGREEMENT
THIS CONSENT, WAIVER AND LOCK-UP
AGREEMENT (the “Agreement”) is made and entered into on
April 21, 2004, by and among SCP Private Equity Partners II, L.P.,
a Delaware limited partnership (“SCP II”), TECORE, Inc.
a Texas corporation (“Tecore”), Mellon Ventures, L.P. a
Delaware limited partnership (“Mellon”), SCP Private
Equity Partners, L.P. (“SCP”) and AirNet Communications
Corporation, a Delaware corporation (“AirNet”)
(collectively, SCP II and Tecore are hereinafter referred to as the
“Note Holders”; collectively, SCP II, Tecore, Mellon
and SCP are hereinafter referred to as the
“Holders”).
RECITALS
A. The Note Holders and AirNet are
parties to that certain Securities Purchase Agreement dated as of
June 5, 2003 (the “Note Purchase Agreement”) whereby
AirNet delivered to each Note Holder a Senior Secured Convertible
Note dated August 13, 2003 (the “Notes”), convertible
into shares of AirNet Common Stock, $0.001 par value. The shares of
Common Stock into which the Notes may be converted are referred to
herein as the “Shares”.
B. The Holders and AirNet are
parties to that certain Second Amended and Restated Agreement among
Series E, Series F and Series G Preferred Stockholders and Senior
Registration Rights Agreement dated September 7, 1999, as amended
from time to time (the “1999 Registration Rights
Agreement”).
C. AirNet has determined that it is
advisable and in its best interest to enter into a Securities
Purchase Agreement (the “Purchase Agreement”) with the
Investors named therein (the “Investors”), whereby
AirNet agrees to sell to each Investor, and each Investor agrees to
purchase from AirNet in a private offering shares of Common Stock
and Warrants (“Warrants”) to purchase shares of Common
Stock on the terms set forth in the Purchase Agreement (the
“Offering”).
D. Under the terms of the Purchase
Agreement, AirNet has agreed to sell shares of its Common Stock and
Warrants for a minimum of $5,000,000 with warrant coverage equal to
50% of the shares of Common Stock to be purchased as units of a
share of Common Stock and applicable Warrant at a purchase price
equal to 82.5% of the lesser of (i) $1.10, (ii) the closing sales
price of the Common Stock on the trading day immediately prior to
the date of the Purchase Agreement, or (iii) the average closing
price of AirNet’s Common Stock for the ten trading days
immediately prior to the date of the Purchase Agreement for each
share of Common Stock and related Warrant (“Reference
Price”). The exercise price of the Warrants will be 120% of
the Reference Price per share of Common Stock covered by the
Warrants.
E. AirNet has agreed to file
promptly a registration statement on Form S-3 (the “
Registration Statement”) in order to register for resale the
shares of Common Stock and the shares of Common Stock underlying
the Warrants to be purchased in the Offering.
F. It is a condition to the
Investors’ obligations to close under the Purchase Agreement
that the Holders execute and deliver this Agreement to
AirNet.
G. In contemplation of, and as a
material inducement for the Investors to enter into, the Purchase
Agreement, the Holders and AirNet have each agreed to execute and
deliver this Agreement.
NOW, THEREFORE, for and in
consideration of the mutual covenants and agreements set forth
herein, Ten Dollars ($10), and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties, intending to be legally bound, agree as
follows:
1. Definitions . Capitalized
terms used but not otherwise defined in this Agreement have the
meanings set forth in the Purchase Agreement.
2. Effectiveness of Agreement
. The Holders’ obligations under this Agreement are
contingent upon and shall be effective only upon the Closing of the
Offering. If the Closing of the Offering has not occurred by 5:30
p.m., EST, on April 30, 2004, the obligations of the Holders’
under this Agreement shall expire.
3. Consents .
(a) Pursuant to Section 5.3(b) of
the Note Purchase Agreement, each Note Holder hereby consents and
agrees to the Offering as contemplated by the Purchase Agreement,
and to the issuance by AirNet of the Common Stock and Warrants
contemplated thereby.
(b) Each of the Holders acknowledges
and consents to the grant by AirNet to the Investors of
registration rights as set forth in the Registration Rights
Agreement to be signed by AirNet and the Investors pursuant to the
Purchase Agreement (the “2004 Registration Rights
Agreement”) with rights senior to those of the Holders under
the 1999 Registration Rights Agreement.
(c) Each of the Holders acknowledges
and consents to the grant by AirNet of registration rights
underlying the warrants for Common Stock issued TN Capital Equities
Limited (“TNC”) as a placement fee in connection with
the Offering.
4. Mellon’s Registration
Rights . AirNet and the Holders each hereby acknowledge and
confirm that Mellon’s shares of Common Stock acquired upon
its conversion of shares of Series B Preferred Stock, its exercise
of warrants previously granted by AirNet, and its purchase of
shares of Common Stock from Tandem PCS Investments, L.P. in August
2003 c
