Exhibit 99.01
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT") dated as of December 18, 1999,
between the undersigned stockholder ("STOCKHOLDER") of Maker Communications,
Inc., a Delaware corporation (the "COMPANY"), and Conexant Systems, Inc., a
Delaware corporation ("Parent").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Parent have entered into an Agreement and Plan of
Merger dated as of December 18, 1999 (the "MERGER AGREEMENT"), providing for the
merger of a wholly-owned subsidiary of Parent ("MERGER SUB") with and into the
Company (the "MERGER") pursuant to the terms and conditions thereof; and
WHEREAS, as an inducement and a condition to Parent entering into the
Merger Agreement, pursuant to which Stockholder will receive the consideration
provided for in the Merger Agreement in exchange for each share of Company
Common Stock, par value $0.01 per share, of Company (the "COMPANY COMMON STOCK")
owned by him, Stockholder has agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDER. Stockholder represents that such
Stockholder:
(a) is the beneficial owner of that number of shares of
Company Common Stock set forth opposite such Stockholder's name on
Exhibit A (such Stockholder's "SHARES");
(b) except as may be denoted in Exhibit A, does not
beneficially own (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "1934 ACT")) or own of record any shares
of Company Common Stock other than such Stockholder's Shares, but
excluding any shares of Company Common Stock which such Stockholder has
the right to obtain upon the exercise of stock options outstanding on
the date hereof; and
(c) has the right, power and authority to execute and deliver
this Agreement and the Proxy (as hereinafter defined) and to perform
such Stockholder's obligations under this Agreement and the Proxy, and
this Agreement and the Proxy has been duly executed and delivered by
such Stockholder and constitutes a valid and legally binding agreement
of such Stockholder, enforceable in accordance with its terms; and such
execution, delivery and performance by such Stockholder of this
Agreement and the Proxy will not (i) conflict with, require a consent,
waiver or approval under, or result in a breach of or default under,
any of the terms of any contract, commitment or other obligation
(written or oral) to which such Stockholder is a party or by which such
Stockholder is bound; (ii) violate any order, writ, injunction, decree
or statute, or any rule
or regulation, applicable to Stockholder or any of the properties or
assets of Stockholder; or (iii) result in the creation of, or impose
any obligation on such Stockholder to create, any Lien (as defined in
the Merger Agreement), charge or other encumbrance of any nature
whatsoever upon the Shares, other than in favor of Parent.
The representations and warranties contained herein shall be made as of the date
hereof and as of each date from the date hereof through and including the date
that the Merger is consummated or this Agreement is terminated in accordance
with its terms.
2. AGREEMENT TO VOTE SHARES. Stockholder shall be present (in person or
by proxy) and vote his Shares and any New Shares (as defined in Section 4
hereof), and shall cause any holder of record of his Shares or New Shares to be
present and vote, (a) in favor of adoption and approval of the Merger Agreement
and the Merger (and each other action and transaction contemplated by the Merger
Agreement or by this Agreement), (b) against any Acquisition Proposal (as
defined in the Merger Agreement) other than the Merger (or any other Acquisition
Proposal of Parent) and (c) against any proposed action or transaction that
would prevent or intentionally delay consummation of the Merger (or other
Acquisition Proposal of Parent) or is otherwise inconsistent therewith, and in
each case, at every meeting of the stockholders of the Company at which any such
matters are considered and at every adjournment thereof (and, if applicable, in
connection with any request or solicitation of written consents of
stockholders). Any such vote shall be cast, or consent shall be given, in
accordance with such procedures relating thereto as shall ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Stockholder shall deliver to
Parent upon request a proxy substantially in the form attached hereto as Exhibit
B (the "PROXY"), which proxy shall be coupled with an interest and irrevocable
to the extent permitted under Delaware law, with the total number of such
Stockholder's Shares and any New Shares correctly indicated thereon. Stockholder
hereby revokes any and all previous proxies granted with respect to his Shares.
Such irrevocable proxy is intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law. The
Stockholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Stockholder
shall also use his best efforts to take, or cause to be taken, all action, and
do, or cause to be done, all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this Agreement or
the Merger Agreement.
3. NO VOTING TRUSTS. After the date hereof, Stockholder agrees that he
will not, nor will he permit any entity under his control to, deposit any Shares
in a voting trust or subject any Shares to any Lien or agreement, arrangement or
understanding with respect to the voting of such Shares other than agreements
entered into with Parent.
4. ADDITIONAL SHARES. Stockholder agrees that in the event (a) of any
stock dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of stock of the Company on, of or affecting the Shares of
such Stockholder, (b) such Stockholder purchases or otherwise acquires
beneficial ownership of any shares of Company Common Stock
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after the execution of this Agreement (including by exercise of options), or (c)
such Stockholder acquires the right to vote or share in the voting of any shares
of Company Common Stock other than the Shares (collectively, "NEW SHARES"), such
Stockholder shall deliver promptly to Parent upon request an irrevocable proxy
substantially in the form attached hereto as Exhibit B with respect to such New
Shares. Stockholder also agrees that any New Shares acquired or purchased by him
shall be subject to the terms of this Agreement and shall constitute Shares to
the same extent as if they were owned by such Stockholder on the date hereof.
5. NO ENCUMBRANCES.
(a) Except as expressly contemplated by this Agreement, Stockholder's
Shares and the certificates representing such Shares are now, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever (other than to the extent
set forth on Schedule 1 to this Agreement), except for any such encumbrances or
proxies arising hereunder.
(b) Except as may otherwise be agreed by Parent in writing and as
contemplated by those agreements or understandings set forth on Schedule II
hereto, the Stockholder shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of the Stockholder's Shares, or any interest therein
or (ii) enter into any contract, option or other agreement or understanding with
respect to any such transfer or any or all of the Stockholder's Shares, or any
interest therein.
6. ACQUISITION PROPOSALS. Stockholder agrees that such Stockholder,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement, (i) shall not, directly or indirectly,
solicit, encourage, initiate, participate in or otherwise facilitate or consent
to any negotiations, or consent to any negotiations, inquiries or discussions
with respect to any Acquisition Proposal and (ii) has terminated any discussions
or negotiations with, and the provision of information or data to, any Person
(other than Parent) respecting an Acquisition Proposal. Such Stockholder further
agrees that he shall not, directly or indirectly, provide any confidential
information or data to any Person (as defined in the Merger Agreement) relating
to or in contemplation of an Acquisition Proposal or engage in any negotiations
or discussions relating to or in contemplation of an Acquisition Proposal,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement. Such Stockholder will notify Parent
immediately if any inquiries, proposals or offers respecting an Acquisition
Proposal are received by, any such information or data is requested from, or any
such discussions or negotiations are sought to be initiated or continued with,
such Stockholder indicating, in connection with such notice, the name of such
Person and the material terms and conditions of any proposals or offers, and
shall keep Parent apprised with respect to the status and terms thereof.
7. AFFILIATES LETTER. Stockholder shall execute and deliver on a timely
basis an Affiliate Letter (as defined in the Merger Agreement).
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8. RELIANCE BY PARENT. Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
9. SPECIFIC PERFORMANCE. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other parties if the
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other parties will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that any other party has adequate remedy at law. Each party
hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
10. HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns and shall not be assignable without the written consent
of all other parties hereto other than any assignment in whole or in part by
Parent.
11. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written oral, among the parties hereto with respect to the subject matter hereof
and contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
12. MISCELLANEOUS.
(a) EXPENSES. Each of the parties hereto shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the negotiation
of this Agreement, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the internal
laws of the State of Delaware without regard to principles of conflicts of law.
(d) SEVERABILITY. If any provision of this Agreement or the application
of such provision to any person or circumstances shall be held invalid by a
court of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
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(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(f) TERMINATION. This Agreement shall terminate upon the earliest to
occur of (A) the Effective Time (as defined in the Merger Agreement), (B) six
months after the occurrence of a termination of the Merger Agreement in
accordance with Section 7.1 (d), (e) or (f) thereof, (C) a termination of the
Merger Agreement in accordance with Section 7.1 (a), (c) or (g) thereof and (D)
six months after the Outside Date as defined in Section 7.1 (b) of the Merger
Agreement and the Merger Agreement is not otherwise terminated.
(g) HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement and no construction or
reference shall be derived therefrom.
(h) NOTICES. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and shall be deemed given
if delivered personally, telecopied (which is confirmed), or sent by overnight
courier (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(i) if to Parent, to:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx, Esq.
Telecopy No.: (000) 000-0000
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(ii) if to the Stockholder, to such Stockholder c/o
Xxxxxxx Xxxxxx
0 Xxxxxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(i) Stockholder shall cause certificates for the Shares and New Shares to have
typed or printed thereon a restrictive legend which shall read substantially as
follows (if and to the extent true and necessary in light of legal and factual
circumstances existing at such time):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN PROVISIONS AS SET FORTH IN THE VOTING AGREEMENT, DATED AS
OF DECEMBER 18, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF CONEXANT SYSTEMS, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES, WHICH CONTAINS RESTRICTIONS ON THE VOTING AND TRANSFER
THEREOF."
(j) CONSENT TO JURISDICTION, ETC. Each party hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the Court of
Chancery of the State of Delaware (unless such court asserts no jurisdiction, in
which case the parties hereto consent to the exclusive jurisdiction of the
courts of the State of Delaware) for any actions, suits or proceedings arising
out of or relating to this Agreement and the transactions contemplated hereby
(and each party hereto agrees not to commence any action, suit or proceeding
relating thereto except in such courts), and further agrees that service of any
process, summons, notice or document by U.S. registered mail to the addresses
set forth herein shall be effective service of process for any such action, suit
or proceeding brought against each party in such court. Each party hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby, in the Court of Chancery of the State of Delaware (unless
such court asserts no jurisdiction, in which case each party consents to the
exclusive jurisdiction of the courts of the State of Delaware). Each party
hereby further irrevocably and unconditionally waives and agrees not to plead or
to claim in any such court that any such action, suit or proceeding brought in
any such court has been brought in an inconvenient forum. Each of the parties
hereto also agrees that any final and unappealable judgment against a party
hereto in connection with any action, suit or other proceeding that be
conclusive and binding on such party and that such award
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or judgment may be enforced in any court of competent jurisdiction, either
within or outside of the United States. A certified or exemplified copy of such
award or judgment shall be conclusive evidence of the fact and amount of such
award or judgment.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
CONEXANT SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman & CEO
Confirmed and accepted as of the date first written above:
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
EXHIBIT A
STOCKHOLDER
Number of Shares of
Name Company Common Stock Type of Ownership
---- -------------------- -----------------
Xxxxxxx Xxxxxx 20,000 Beneficial
EXHIBIT B
FORM OF PROXY
The undersigned stockholder, for consideration received, hereby
appoints [PARENT DESIGNEES] and each of them as my proxies, with full power of
substitution in each of them, to cast on behalf of the undersigned all votes
entitled to be cast by the holder of the shares of Company Common Stock, par
value $0.01 per share, of Maker Communications, Inc., a Delaware corporation
(the "COMPANY"), owned by the undersigned at the Special Meeting of Stockholders
of the Company to be held for the consideration of the Merger under the
Agreement and Plan of Merger, dated as of December 18, 1999 (the "MERGER
AGREEMENT"), among Conexant Systems, Inc., a Delaware corporation ("Parent"),
the Company and Merlot Acquisition, Corp., a Delaware corporation ("MERGER
SUB"), and at any adjournment thereof or any other meeting for consideration of
any Acquisition Proposal (as defined in the Merger Agreement) or affecting the
Merger or any Acquisition Proposal, or to execute any written consent of
stockholders with respect to any of the foregoing (i) "FOR" approval and
adoption of the Merger Agreement, providing for the merger (the "MERGER") of
Merger Sub with and into the Company, and the Merger, (ii) "AGAINST" against any
proposal or offer with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving, or any purchase of any substantial portion of
the assets of, or any equity securities of, or any transaction that would
involve the transfer or potential transfer of control of, the Company other than
the Merger and any proposed action or transaction that would prevent or
intentionally delay consummation of the Merger or is otherwise inconsistent
therewith and (iii) on other matters as directed by Section 2 of that certain
Voting Agreement, dated as of December 18, 1999, between a certain stockholder
of the Company, the undersigned, and Parent (the "VOTING AGREEMENT"). This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms.
Dated __________________________, 1999
--------------------------------------
(Signature of Stockholder)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT") dated as of December 18, 1999,
between the undersigned stockholder ("STOCKHOLDER") of Maker Communications,
Inc., a Delaware corporation (the "COMPANY"), and Conexant Systems, Inc., a
Delaware corporation ("Parent").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Parent have entered into an Agreement and Plan of
Merger dated as of December 18, 1999 (the "MERGER AGREEMENT"), providing for the
merger of a wholly-owned subsidiary of Parent ("MERGER SUB") with and into the
Company (the "MERGER") pursuant to the terms and conditions thereof; and
WHEREAS, as an inducement and a condition to Parent entering into the
Merger Agreement, pursuant to which Stockholder will receive the consideration
provided for in the Merger Agreement in exchange for each share of Company
Common Stock, par value $0.01 per share, of Company (the "COMPANY COMMON STOCK")
owned by him, Stockholder has agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDER. Stockholder represents that such
Stockholder:
(a) is the beneficial owner of that number of shares of
Company Common Stock set forth opposite such Stockholder's name on
Exhibit A (such Stockholder's "SHARES");
(b) except as may be denoted in Exhibit A, does not
beneficially own (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "1934 ACT")) or own of record any shares
of Company Common Stock other than such Stockholder's Shares, but
excluding any shares of Company Common Stock which such Stockholder has
the right to obtain upon the exercise of stock options outstanding on
the date hereof; and
(c) has the right, power and authority to execute and deliver
this Agreement and the Proxy (as hereinafter defined) and to perform
such Stockholder's obligations under this Agreement and the Proxy, and
this Agreement and the Proxy has been duly executed and delivered by
such Stockholder and constitutes a valid and legally binding agreement
of such Stockholder, enforceable in accordance with its terms; and such
execution, delivery and performance by such Stockholder of this
Agreement and the Proxy will not (i) conflict with, require a consent,
waiver or approval under, or result in a breach of or default under,
any of the terms of any contract, commitment or other obligation
(written or oral) to which such Stockholder is a party or by which such
Stockholder is bound; (ii) violate any order, writ, injunction, decree
or statute, or any rule
or regulation, applicable to Stockholder or any of the properties or
assets of Stockholder; or (iii) result in the creation of, or impose
any obligation on such Stockholder to create, any Lien (as defined in
the Merger Agreement), charge or other encumbrance of any nature
whatsoever upon the Shares, other than in favor of Parent.
The representations and warranties contained herein shall be made as of the date
hereof and as of each date from the date hereof through and including the date
that the Merger is consummated or this Agreement is terminated in accordance
with its terms.
2. AGREEMENT TO VOTE SHARES. Stockholder shall be present (in person or
by proxy) and vote his Shares and any New Shares (as defined in Section 4
hereof), and shall cause any holder of record of his Shares or New Shares to be
present and vote, (a) in favor of adoption and approval of the Merger Agreement
and the Merger (and each other action and transaction contemplated by the Merger
Agreement or by this Agreement), (b) against any Acquisition Proposal (as
defined in the Merger Agreement) other than the Merger (or any other Acquisition
Proposal of Parent) and (c) against any proposed action or transaction that
would prevent or intentionally delay consummation of the Merger (or other
Acquisition Proposal of Parent) or is otherwise inconsistent therewith, and in
each case, at every meeting of the stockholders of the Company at which any such
matters are considered and at every adjournment thereof (and, if applicable, in
connection with any request or solicitation of written consents of
stockholders). Any such vote shall be cast, or consent shall be given, in
accordance with such procedures relating thereto as shall ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Stockholder shall deliver to
Parent upon request a proxy substantially in the form attached hereto as Exhibit
B (the "PROXY"), which proxy shall be coupled with an interest and irrevocable
to the extent permitted under Delaware law, with the total number of such
Stockholder's Shares and any New Shares correctly indicated thereon. Stockholder
hereby revokes any and all previous proxies granted with respect to his Shares.
Such irrevocable proxy is intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law. The
Stockholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Stockholder
shall also use his best efforts to take, or cause to be taken, all action, and
do, or cause to be done, all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this Agreement or
the Merger Agreement.
3. NO VOTING TRUSTS. After the date hereof, Stockholder agrees that he
will not, nor will he permit any entity under his control to, deposit any Shares
in a voting trust or subject any Shares to any Lien or agreement, arrangement or
understanding with respect to the voting of such Shares other than agreements
entered into with Parent.
4. ADDITIONAL SHARES. Stockholder agrees that in the event (a) of any
stock dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of stock of the Company on, of or affecting the Shares of
such Stockholder, (b) such Stockholder purchases or otherwise acquires
beneficial ownership of any shares of Company Common Stock
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after the execution of this Agreement (including by exercise of options), or (c)
such Stockholder acquires the right to vote or share in the voting of any shares
of Company Common Stock other than the Shares (collectively, "NEW SHARES"), such
Stockholder shall deliver promptly to Parent upon request an irrevocable proxy
substantially in the form attached hereto as Exhibit B with respect to such New
Shares. Stockholder also agrees that any New Shares acquired or purchased by him
shall be subject to the terms of this Agreement and shall constitute Shares to
the same extent as if they were owned by such Stockholder on the date hereof.
5. NO ENCUMBRANCES.
(a) Except as expressly contemplated by this Agreement, Stockholder's
Shares and the certificates representing such Shares are now, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever (other than to the extent
set forth on Schedule 1 to this Agreement), except for any such encumbrances or
proxies arising hereunder.
(b) Except as may otherwise be agreed by Parent in writing and as
contemplated by those agreements or understandings set forth on Schedule II
hereto, the Stockholder shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of the Stockholder's Shares, or any interest therein
or (ii) enter into any contract, option or other agreement or understanding with
respect to any such transfer or any or all of the Stockholder's Shares, or any
interest therein.
6. ACQUISITION PROPOSALS. Stockholder agrees that such Stockholder,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement, (i) shall not, directly or indirectly,
solicit, encourage, initiate, participate in or otherwise facilitate or consent
to any negotiations, or consent to any negotiations, inquiries or discussions
with respect to any Acquisition Proposal and (ii) has terminated any discussions
or negotiations with, and the provision of information or data to, any Person
(other than Parent) respecting an Acquisition Proposal. Such Stockholder further
agrees that he shall not, directly or indirectly, provide any confidential
information or data to any Person (as defined in the Merger Agreement) relating
to or in contemplation of an Acquisition Proposal or engage in any negotiations
or discussions relating to or in contemplation of an Acquisition Proposal,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement. Such Stockholder will notify Parent
immediately if any inquiries, proposals or offers respecting an Acquisition
Proposal are received by, any such information or data is requested from, or any
such discussions or negotiations are sought to be initiated or continued with,
such Stockholder indicating, in connection with such notice, the name of such
Person and the material terms and conditions of any proposals or offers, and
shall keep Parent apprised with respect to the status and terms thereof.
7. AFFILIATES LETTER. Stockholder shall execute and deliver on a timely
basis an Affiliate Letter (as defined in the Merger Agreement).
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8. RELIANCE BY PARENT. Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
9. SPECIFIC PERFORMANCE. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other parties if the
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other parties will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that any other party has adequate remedy at law. Each party
hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
10. HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns and shall not be assignable without the written consent
of all other parties hereto other than any assignment in whole or in part by
Parent.
11. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written oral, among the parties hereto with respect to the subject matter hereof
and contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
12. MISCELLANEOUS.
(a) EXPENSES. Each of the parties hereto shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the negotiation
of this Agreement, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the internal
laws of the State of Delaware without regard to principles of conflicts of law.
(d) SEVERABILITY. If any provision of this Agreement or the application
of such provision to any person or circumstances shall be held invalid by a
court of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
4
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(f) TERMINATION. This Agreement shall terminate upon the earliest to
occur of (A) the Effective Time (as defined in the Merger Agreement), (B) six
months after the occurrence of a termination of the Merger Agreement in
accordance with Section 7.1 (d), (e) or (f) thereof, (C) a termination of the
Merger Agreement in accordance with Section 7.1 (a), (c) or (g) thereof and (D)
six months after the Outside Date as defined in Section 7.1 (b) of the Merger
Agreement and the Merger Agreement is not otherwise terminated.
(g) HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement and no construction or
reference shall be derived therefrom.
(h) NOTICES. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and shall be deemed given
if delivered personally, telecopied (which is confirmed), or sent by overnight
courier (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(i) if to Parent, to:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx, Esq.
Telecopy No.: (000) 000-0000
5
(ii) if to the Stockholder, to such Stockholder c/x
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy No.:
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(i) Stockholder shall cause certificates for the Shares and New Shares
to have typed or printed thereon a restrictive legend which shall read
substantially as follows (if and to the extent true and necessary in light of
legal and factual circumstances existing at such time):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN PROVISIONS AS SET FORTH IN THE VOTING AGREEMENT, DATED AS
OF DECEMBER 18, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF CONEXANT SYSTEMS, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES, WHICH CONTAINS RESTRICTIONS ON THE VOTING AND TRANSFER
THEREOF."
(j) CONSENT TO JURISDICTION, ETC. Each party hereto hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
Court of Chancery of the State of Delaware (unless such court asserts no
jurisdiction, in which case the parties hereto consent to the exclusive
jurisdiction of the courts of the State of Delaware) for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby (and each party hereto agrees not to commence any action,
suit or proceeding relating thereto except in such courts), and further agrees
that service of any process, summons, notice or document by U.S. registered mail
to the addresses set forth herein shall be effective service of process for any
such action, suit or proceeding brought against each party in such court. Each
party hereto hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby, in the Court of Chancery of the State
of Delaware (unless such court asserts no jurisdiction, in which case each party
consents to the exclusive jurisdiction of the courts of the State of Delaware).
Each party hereby further irrevocably and unconditionally waives and agrees not
to plead or to claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. Each of the
parties hereto also agrees that any final and unappealable judgment against a
party hereto in connection with any
6
action, suit or other proceeding that be conclusive and binding on such party
and that such award or judgment may be enforced in any court of competent
jurisdiction, either within or outside of the United States. A certified or
exemplified copy of such award or judgment shall be conclusive evidence of the
fact and amount of such award or judgment.
[Signature Pages Follow]
7
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
CONEXANT SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman & CEO
Confirmed and accepted as of the date first written above:
XXXXXXXXXX 1999 IRREVOCABLE
TRUST DTD 4/5/99
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
EXHIBIT A
STOCKHOLDER
Number of Shares of
Name Company Common Stock Type of Ownership
---- -------------------- -----------------
Xxxxxxxxxx 1999 Irrevocable 75,000 Beneficial
Trust DTD 4/5/99
EXHIBIT B
FORM OF PROXY
The undersigned stockholder, for consideration received, hereby
appoints [PARENT DESIGNEES] and each of them as my proxies, with full power of
substitution in each of them, to cast on behalf of the undersigned all votes
entitled to be cast by the holder of the shares of Company Common Stock, par
value $0.01 per share, of Maker Communications, Inc., a Delaware corporation
(the "COMPANY"), owned by the undersigned at the Special Meeting of Stockholders
of the Company to be held for the consideration of the Merger under the
Agreement and Plan of Merger, dated as of December 18, 1999 (the "MERGER
AGREEMENT"), among Conexant Systems, Inc., a Delaware corporation ("Parent"),
the Company and Merlot Acquisition, Corp., a Delaware corporation ("MERGER
SUB"), and at any adjournment thereof or any other meeting for consideration of
any Acquisition Proposal (as defined in the Merger Agreement) or affecting the
Merger or any Acquisition Proposal, or to execute any written consent of
stockholders with respect to any of the foregoing (i) "FOR" approval and
adoption of the Merger Agreement, providing for the merger (the "MERGER") of
Merger Sub with and into the Company, and the Merger, (ii) "AGAINST" against any
proposal or offer with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving, or any purchase of any substantial portion of
the assets of, or any equity securities of, or any transaction that would
involve the transfer or potential transfer of control of, the Company other than
the Merger and any proposed action or transaction that would prevent or
intentionally delay consummation of the Merger or is otherwise inconsistent
therewith and (iii) on other matters as directed by Section 2 of that certain
Voting Agreement, dated as of December 18, 1999, between a certain stockholder
of the Company, the undersigned, and Parent (the "VOTING AGREEMENT"). This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms.
Dated __________________________, 1999
-------------------------------------
(Signature of Stockholder)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT") dated as of December 18, 1999,
between the undersigned stockholder ("STOCKHOLDER") of Maker Communications,
Inc., a Delaware corporation (the "COMPANY"), and Conexant Systems, Inc., a
Delaware corporation ("Parent").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Parent have entered into an Agreement and Plan of
Merger dated as of December 18, 1999 (the "MERGER AGREEMENT"), providing for the
merger of a wholly-owned subsidiary of Parent ("MERGER SUB") with and into the
Company (the "MERGER") pursuant to the terms and conditions thereof; and
WHEREAS, as an inducement and a condition to Parent entering into the
Merger Agreement, pursuant to which Stockholder will receive the consideration
provided for in the Merger Agreement in exchange for each share of Company
Common Stock, par value $0.01 per share, of Company (the "COMPANY COMMON STOCK")
owned by him, Stockholder has agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDER. Stockholder represents that such
Stockholder:
(a) is the beneficial owner of that number of shares of
Company Common Stock set forth opposite such Stockholder's name on
Exhibit A (such Stockholder's "SHARES");
(b) except as may be denoted in Exhibit A, does not
beneficially own (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "1934 ACT")) or own of record any shares
of Company Common Stock other than such Stockholder's Shares, but
excluding any shares of Company Common Stock which such Stockholder has
the right to obtain upon the exercise of stock options outstanding on
the date hereof; and
(c) has the right, power and authority to execute and deliver
this Agreement and the Proxy (as hereinafter defined) and to perform
such Stockholder's obligations under this Agreement and the Proxy, and
this Agreement and the Proxy has been duly executed and delivered by
such Stockholder and constitutes a valid and legally binding agreement
of such Stockholder, enforceable in accordance with its terms; and such
execution, delivery and performance by such Stockholder of this
Agreement and the Proxy will not (i) conflict with, require a consent,
waiver or approval under, or result in a breach of or default under,
any of the terms of any contract, commitment or other obligation
(written or oral) to which such Stockholder is a party or by which such
Stockholder is bound; (ii) violate any order, writ, injunction, decree
or statute, or any rule
or regulation, applicable to Stockholder or any of the properties or
assets of Stockholder; or (iii) result in the creation of, or impose
any obligation on such Stockholder to create, any Lien (as defined in
the Merger Agreement), charge or other encumbrance of any nature
whatsoever upon the Shares, other than in favor of Parent.
The representations and warranties contained herein shall be made as of the date
hereof and as of each date from the date hereof through and including the date
that the Merger is consummated or this Agreement is terminated in accordance
with its terms.
2. AGREEMENT TO VOTE SHARES. Stockholder shall be present (in person or
by proxy) and vote his Shares and any New Shares (as defined in Section 4
hereof), and shall cause any holder of record of his Shares or New Shares to be
present and vote, (a) in favor of adoption and approval of the Merger Agreement
and the Merger (and each other action and transaction contemplated by the Merger
Agreement or by this Agreement), (b) against any Acquisition Proposal (as
defined in the Merger Agreement) other than the Merger (or any other Acquisition
Proposal of Parent) and (c) against any proposed action or transaction that
would prevent or intentionally delay consummation of the Merger (or other
Acquisition Proposal of Parent) or is otherwise inconsistent therewith, and in
each case, at every meeting of the stockholders of the Company at which any such
matters are considered and at every adjournment thereof (and, if applicable, in
connection with any request or solicitation of written consents of
stockholders). Any such vote shall be cast, or consent shall be given, in
accordance with such procedures relating thereto as shall ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Stockholder shall deliver to
Parent upon request a proxy substantially in the form attached hereto as Exhibit
B (the "PROXY"), which proxy shall be coupled with an interest and irrevocable
to the extent permitted under Delaware law, with the total number of such
Stockholder's Shares and any New Shares correctly indicated thereon. Stockholder
hereby revokes any and all previous proxies granted with respect to his Shares.
Such irrevocable proxy is intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law. The
Stockholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Stockholder
shall also use his best efforts to take, or cause to be taken, all action, and
do, or cause to be done, all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this Agreement or
the Merger Agreement.
3. NO VOTING TRUSTS. After the date hereof, Stockholder agrees that he
will not, nor will he permit any entity under his control to, deposit any Shares
in a voting trust or subject any Shares to any Lien or agreement, arrangement or
understanding with respect to the voting of such Shares other than agreements
entered into with Parent.
4. ADDITIONAL SHARES. Stockholder agrees that in the event (a) of any
stock dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of stock of the Company on, of or affecting the Shares of
such Stockholder, (b) such Stockholder purchases or otherwise acquires
beneficial ownership of any shares of Company Common Stock
2
after the execution of this Agreement (including by exercise of options), or (c)
such Stockholder acquires the right to vote or share in the voting of any shares
of Company Common Stock other than the Shares (collectively, "NEW SHARES"), such
Stockholder shall deliver promptly to Parent upon request an irrevocable proxy
substantially in the form attached hereto as Exhibit B with respect to such New
Shares. Stockholder also agrees that any New Shares acquired or purchased by him
shall be subject to the terms of this Agreement and shall constitute Shares to
the same extent as if they were owned by such Stockholder on the date hereof.
5. NO ENCUMBRANCES.
(a) Except as expressly contemplated by this Agreement, Stockholder's
Shares and the certificates representing such Shares are now, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever (other than to the extent
set forth on Schedule 1 to this Agreement), except for any such encumbrances or
proxies arising hereunder.
(b) Except as may otherwise be agreed by Parent in writing and as
contemplated by those agreements or understandings set forth on Schedule II
hereto, the Stockholder shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of the Stockholder's Shares, or any interest therein
or (ii) enter into any contract, option or other agreement or understanding with
respect to any such transfer or any or all of the Stockholder's Shares, or any
interest therein.
6. ACQUISITION PROPOSALS. Stockholder agrees that such Stockholder,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement, (i) shall not, directly or indirectly,
solicit, encourage, initiate, participate in or otherwise facilitate or consent
to any negotiations, or consent to any negotiations, inquiries or discussions
with respect to any Acquisition Proposal and (ii) has terminated any discussions
or negotiations with, and the provision of information or data to, any Person
(other than Parent) respecting an Acquisition Proposal. Such Stockholder further
agrees that he shall not, directly or indirectly, provide any confidential
information or data to any Person (as defined in the Merger Agreement) relating
to or in contemplation of an Acquisition Proposal or engage in any negotiations
or discussions relating to or in contemplation of an Acquisition Proposal,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement. Such Stockholder will notify Parent
immediately if any inquiries, proposals or offers respecting an Acquisition
Proposal are received by, any such information or data is requested from, or any
such discussions or negotiations are sought to be initiated or continued with,
such Stockholder indicating, in connection with such notice, the name of such
Person and the material terms and conditions of any proposals or offers, and
shall keep Parent apprised with respect to the status and terms thereof.
7. AFFILIATES LETTER. Stockholder shall execute and deliver on a timely
basis an Affiliate Letter (as defined in the Merger Agreement).
3
8. RELIANCE BY PARENT. Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
9. SPECIFIC PERFORMANCE. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other parties if the
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other parties will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that any other party has adequate remedy at law. Each party
hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
10. HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns and shall not be assignable without the written consent
of all other parties hereto other than any assignment in whole or in part by
Parent.
11. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written oral, among the parties hereto with respect to the subject matter hereof
and contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
12. MISCELLANEOUS.
(a) EXPENSES. Each of the parties hereto shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the negotiation
of this Agreement, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the internal
laws of the State of Delaware without regard to principles of conflicts of law.
(d) SEVERABILITY. If any provision of this Agreement or the application
of such provision to any person or circumstances shall be held invalid by a
court of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
4
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(f) TERMINATION. This Agreement shall terminate upon the earliest to
occur of (A) the Effective Time (as defined in the Merger Agreement), (B) six
months after the occurrence of a termination of the Merger Agreement in
accordance with Section 7.1 (d), (e) or (f) thereof, (C) a termination of the
Merger Agreement in accordance with Section 7.1 (a), (c) or (g) thereof and (D)
six months after the Outside Date as defined in Section 7.1 (b) of the Merger
Agreement and the Merger Agreement is not otherwise terminated.
(g) HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement and no construction or
reference shall be derived therefrom.
(h) NOTICES. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and shall be deemed given
if delivered personally, telecopied (which is confirmed), or sent by overnight
courier (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(i) if to Parent, to:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx, Esq.
Telecopy No.: (000) 000-0000
5
(ii) if to the Stockholder, to such Stockholder c/x
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy No.:
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(i) Stockholder shall cause certificates for the Shares and New Shares
to have typed or printed thereon a restrictive legend which shall read
substantially as follows (if and to the extent true and necessary in light of
legal and factual circumstances existing at such time):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN PROVISIONS AS SET FORTH IN THE VOTING AGREEMENT, DATED AS
OF DECEMBER 18, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF CONEXANT SYSTEMS, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES, WHICH CONTAINS RESTRICTIONS ON THE VOTING AND TRANSFER
THEREOF."
(j) CONSENT TO JURISDICTION, ETC. Each party hereto hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
Court of Chancery of the State of Delaware (unless such court asserts no
jurisdiction, in which case the parties hereto consent to the exclusive
jurisdiction of the courts of the State of Delaware) for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby (and each party hereto agrees not to commence any action,
suit or proceeding relating thereto except in such courts), and further agrees
that service of any process, summons, notice or document by U.S. registered mail
to the addresses set forth herein shall be effective service of process for any
such action, suit or proceeding brought against each party in such court. Each
party hereto hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby, in the Court of Chancery of the State
of Delaware (unless such court asserts no jurisdiction, in which case each party
consents to the exclusive jurisdiction of the courts of the State of Delaware).
Each party hereby further irrevocably and unconditionally waives and agrees not
to plead or to claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. Each of the
parties hereto also agrees that any final and unappealable judgment against a
party hereto in connection with any
6
action, suit or other proceeding that be conclusive and binding on such party
and that such award or judgment may be enforced in any court of competent
jurisdiction, either within or outside of the United States. A certified or
exemplified copy of such award or judgment shall be conclusive evidence of the
fact and amount of such award or judgment.
[Signature Pages Follow]
7
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
CONEXANT SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman & CEO
Confirmed and accepted as of the date first written above:
XXXXXXXXXX 1999 GRANTOR RETAINED
ANNUITY TRUST DTD 4/5/99
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Trustee
EXHIBIT A
STOCKHOLDER
Number of Shares of
Name Company Common Stock Type of Ownership
---- -------------------- -----------------
Xxxxxxxxxx 1999 Grantor 75,000 Beneficial
Retained Annuity Trust DTD
4/5/99
EXHIBIT B
FORM OF PROXY
The undersigned stockholder, for consideration received, hereby
appoints [PARENT DESIGNEES] and each of them as my proxies, with full power of
substitution in each of them, to cast on behalf of the undersigned all votes
entitled to be cast by the holder of the shares of Company Common Stock, par
value $0.01 per share, of Maker Communications, Inc., a Delaware corporation
(the "COMPANY"), owned by the undersigned at the Special Meeting of Stockholders
of the Company to be held for the consideration of the Merger under the
Agreement and Plan of Merger, dated as of December 18, 1999 (the "MERGER
AGREEMENT"), among Conexant Systems, Inc., a Delaware corporation ("Parent"),
the Company and Merlot Acquisition, Corp., a Delaware corporation ("MERGER
SUB"), and at any adjournment thereof or any other meeting for consideration of
any Acquisition Proposal (as defined in the Merger Agreement) or affecting the
Merger or any Acquisition Proposal, or to execute any written consent of
stockholders with respect to any of the foregoing (i) "FOR" approval and
adoption of the Merger Agreement, providing for the merger (the "MERGER") of
Merger Sub with and into the Company, and the Merger, (ii) "AGAINST" against any
proposal or offer with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving, or any purchase of any substantial portion of
the assets of, or any equity securities of, or any transaction that would
involve the transfer or potential transfer of control of, the Company other than
the Merger and any proposed action or transaction that would prevent or
intentionally delay consummation of the Merger or is otherwise inconsistent
therewith and (iii) on other matters as directed by Section 2 of that certain
Voting Agreement, dated as of December 18, 1999, between a certain stockholder
of the Company, the undersigned, and Parent (the "VOTING AGREEMENT"). This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms.
Dated __________________________, 1999
-------------------------------------
(Signature of Stockholder)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT") dated as of December 18, 1999,
between the undersigned stockholder ("STOCKHOLDER") of Maker Communications,
Inc., a Delaware corporation (the "COMPANY"), and Conexant Systems, Inc., a
Delaware corporation ("Parent").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Parent have entered into an Agreement and Plan of
Merger dated as of December 18, 1999 (the "MERGER AGREEMENT"), providing for the
merger of a wholly-owned subsidiary of Parent ("MERGER SUB") with and into the
Company (the "MERGER") pursuant to the terms and conditions thereof; and
WHEREAS, as an inducement and a condition to Parent entering into the
Merger Agreement, pursuant to which Stockholder will receive the consideration
provided for in the Merger Agreement in exchange for each share of Company
Common Stock, par value $0.01 per share, of Company (the "COMPANY COMMON STOCK")
owned by him, Stockholder has agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDER. Stockholder represents that such
Stockholder:
(a) is the beneficial owner of that number of shares of
Company Common Stock set forth opposite such Stockholder's name on
Exhibit A (such Stockholder's "SHARES");
(b) except as may be denoted in Exhibit A, does not
beneficially own (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "1934 ACT")) or own of record any shares
of Company Common Stock other than such Stockholder's Shares, but
excluding any shares of Company Common Stock which such Stockholder has
the right to obtain upon the exercise of stock options outstanding on
the date hereof; and
(c) has the right, power and authority to execute and deliver
this Agreement and the Proxy (as hereinafter defined) and to perform
such Stockholder's obligations under this Agreement and the Proxy, and
this Agreement and the Proxy has been duly executed and delivered by
such Stockholder and constitutes a valid and legally binding agreement
of such Stockholder, enforceable in accordance with its terms; and such
execution, delivery and performance by such Stockholder of this
Agreement and the Proxy will not (i) conflict with, require a consent,
waiver or approval under, or result in a breach of or default under,
any of the terms of any contract, commitment or other obligation
(written or oral) to which such Stockholder is a party or by which such
Stockholder is bound; (ii) violate any order, writ, injunction, decree
or statute, or any rule
or regulation, applicable to Stockholder or any of the properties or
assets of Stockholder; or (iii) result in the creation of, or impose
any obligation on such Stockholder to create, any Lien (as defined in
the Merger Agreement), charge or other encumbrance of any nature
whatsoever upon the Shares, other than in favor of Parent.
The representations and warranties contained herein shall be made as of the date
hereof and as of each date from the date hereof through and including the date
that the Merger is consummated or this Agreement is terminated in accordance
with its terms.
2. AGREEMENT TO VOTE SHARES. Stockholder shall be present (in person or
by proxy) and vote his Shares and any New Shares (as defined in Section 4
hereof), and shall cause any holder of record of his Shares or New Shares to be
present and vote, (a) in favor of adoption and approval of the Merger Agreement
and the Merger (and each other action and transaction contemplated by the Merger
Agreement or by this Agreement), (b) against any Acquisition Proposal (as
defined in the Merger Agreement) other than the Merger (or any other Acquisition
Proposal of Parent) and (c) against any proposed action or transaction that
would prevent or intentionally delay consummation of the Merger (or other
Acquisition Proposal of Parent) or is otherwise inconsistent therewith, and in
each case, at every meeting of the stockholders of the Company at which any such
matters are considered and at every adjournment thereof (and, if applicable, in
connection with any request or solicitation of written consents of
stockholders). Any such vote shall be cast, or consent shall be given, in
accordance with such procedures relating thereto as shall ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Stockholder shall deliver to
Parent upon request a proxy substantially in the form attached hereto as Exhibit
B (the "PROXY"), which proxy shall be coupled with an interest and irrevocable
to the extent permitted under Delaware law, with the total number of such
Stockholder's Shares and any New Shares correctly indicated thereon. Stockholder
hereby revokes any and all previous proxies granted with respect to his Shares.
Such irrevocable proxy is intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law. The
Stockholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Stockholder
shall also use his best efforts to take, or cause to be taken, all action, and
do, or cause to be done, all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this Agreement or
the Merger Agreement.
3. NO VOTING TRUSTS. After the date hereof, Stockholder agrees that he
will not, nor will he permit any entity under his control to, deposit any Shares
in a voting trust or subject any Shares to any Lien or agreement, arrangement or
understanding with respect to the voting of such Shares other than agreements
entered into with Parent.
4. ADDITIONAL SHARES. Stockholder agrees that in the event (a) of any
stock dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of stock of the Company on, of or affecting the Shares of
such Stockholder, (b) such Stockholder purchases or otherwise acquires
beneficial ownership of any shares of Company Common Stock
2
after the execution of this Agreement (including by exercise of options), or (c)
such Stockholder acquires the right to vote or share in the voting of any shares
of Company Common Stock other than the Shares (collectively, "NEW SHARES"), such
Stockholder shall deliver promptly to Parent upon request an irrevocable proxy
substantially in the form attached hereto as Exhibit B with respect to such New
Shares. Stockholder also agrees that any New Shares acquired or purchased by him
shall be subject to the terms of this Agreement and shall constitute Shares to
the same extent as if they were owned by such Stockholder on the date hereof.
5. NO ENCUMBRANCES.
(a) Except as expressly contemplated by this Agreement, Stockholder's
Shares and the certificates representing such Shares are now, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever (other than to the extent
set forth on Schedule 1 to this Agreement), except for any such encumbrances or
proxies arising hereunder.
(b) Except as may otherwise be agreed by Parent in writing and as
contemplated by those agreements or understandings set forth on Schedule II
hereto, the Stockholder shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of the Stockholder's Shares, or any interest therein
or (ii) enter into any contract, option or other agreement or understanding with
respect to any such transfer or any or all of the Stockholder's Shares, or any
interest therein.
6. ACQUISITION PROPOSALS. Stockholder agrees that such Stockholder,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement, (i) shall not, directly or indirectly,
solicit, encourage, initiate, participate in or otherwise facilitate or consent
to any negotiations, or consent to any negotiations, inquiries or discussions
with respect to any Acquisition Proposal and (ii) has terminated any discussions
or negotiations with, and the provision of information or data to, any Person
(other than Parent) respecting an Acquisition Proposal. Such Stockholder further
agrees that he shall not, directly or indirectly, provide any confidential
information or data to any Person (as defined in the Merger Agreement) relating
to or in contemplation of an Acquisition Proposal or engage in any negotiations
or discussions relating to or in contemplation of an Acquisition Proposal,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement. Such Stockholder will notify Parent
immediately if any inquiries, proposals or offers respecting an Acquisition
Proposal are received by, any such information or data is requested from, or any
such discussions or negotiations are sought to be initiated or continued with,
such Stockholder indicating, in connection with such notice, the name of such
Person and the material terms and conditions of any proposals or offers, and
shall keep Parent apprised with respect to the status and terms thereof.
7. AFFILIATES LETTER. Stockholder shall execute and deliver on a timely
basis an Affiliate Letter (as defined in the Merger Agreement).
3
8. RELIANCE BY PARENT. Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
9. SPECIFIC PERFORMANCE. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other parties if the
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other parties will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that any other party has adequate remedy at law. Each party
hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
10. HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns and shall not be assignable without the written consent
of all other parties hereto other than any assignment in whole or in part by
Parent.
11. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written oral, among the parties hereto with respect to the subject matter hereof
and contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
12. MISCELLANEOUS.
(a) EXPENSES. Each of the parties hereto shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the negotiation
of this Agreement, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the internal
laws of the State of Delaware without regard to principles of conflicts of law.
(d) SEVERABILITY. If any provision of this Agreement or the application
of such provision to any person or circumstances shall be held invalid by a
court of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
4
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(f) TERMINATION. This Agreement shall terminate upon the earliest to
occur of (A) the Effective Time (as defined in the Merger Agreement), (B) six
months after the occurrence of a termination of the Merger Agreement in
accordance with Section 7.1 (d), (e) or (f) thereof, (C) a termination of the
Merger Agreement in accordance with Section 7.1 (a), (c) or (g) thereof and (D)
six months after the Outside Date as defined in Section 7.1 (b) of the Merger
Agreement and the Merger Agreement is not otherwise terminated.
(g) HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement and no construction or
reference shall be derived therefrom.
(h) NOTICES. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and shall be deemed given
if delivered personally, telecopied (which is confirmed), or sent by overnight
courier (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(i) if to Parent, to:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx, Esq.
Telecopy No.: (000) 000-0000
5
(ii) if to the Stockholder, to such Stockholder c/o
Tecumseh Limited Partnership I
00 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy No.:
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(i) Stockholder shall cause certificates for the Shares and New Shares
to have typed or printed thereon a restrictive legend which shall read
substantially as follows (if and to the extent true and necessary in light of
legal and factual circumstances existing at such time):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN PROVISIONS AS SET FORTH IN THE VOTING AGREEMENT, DATED AS
OF DECEMBER 18, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF CONEXANT SYSTEMS, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES, WHICH CONTAINS RESTRICTIONS ON THE VOTING AND TRANSFER
THEREOF."
(j) CONSENT TO JURISDICTION, ETC. Each party hereto hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
Court of Chancery of the State of Delaware (unless such court asserts no
jurisdiction, in which case the parties hereto consent to the exclusive
jurisdiction of the courts of the State of Delaware) for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby (and each party hereto agrees not to commence any action,
suit or proceeding relating thereto except in such courts), and further agrees
that service of any process, summons, notice or document by U.S. registered mail
to the addresses set forth herein shall be effective service of process for any
such action, suit or proceeding brought against each party in such court. Each
party hereto hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby, in the Court of Chancery of the State
of Delaware (unless such court asserts no jurisdiction, in which case each party
consents to the exclusive jurisdiction of the courts of the State of Delaware).
Each party hereby further irrevocably and unconditionally waives and agrees not
to plead or to claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. Each of the
parties hereto also agrees that any final and unappealable judgment against a
party hereto in connection with any
6
action, suit or other proceeding that be conclusive and binding on such party
and that such award or judgment may be enforced in any court of competent
jurisdiction, either within or outside of the United States. A certified or
exemplified copy of such award or judgment shall be conclusive evidence of the
fact and amount of such award or judgment.
[Signature Pages Follow]
7
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
CONEXANT SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman & CEO
Confirmed and accepted as of the date first written above:
TECUMSEH LIMITED PARTNERSHIP I
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: General Partner
EXHIBIT A
STOCKHOLDER
Number of Shares of
Name Company Common Stock Type of Ownership
---- -------------------- -----------------
Tecumseh Limited Partnership I 131,490 Beneficial
EXHIBIT B
FORM OF PROXY
The undersigned stockholder, for consideration received, hereby
appoints [PARENT DESIGNEES] and each of them as my proxies, with full power of
substitution in each of them, to cast on behalf of the undersigned all votes
entitled to be cast by the holder of the shares of Company Common Stock, par
value $0.01 per share, of Maker Communications, Inc., a Delaware corporation
(the "COMPANY"), owned by the undersigned at the Special Meeting of Stockholders
of the Company to be held for the consideration of the Merger under the
Agreement and Plan of Merger, dated as of December 18, 1999 (the "MERGER
AGREEMENT"), among Conexant Systems, Inc., a Delaware corporation ("Parent"),
the Company and Merlot Acquisition, Corp., a Delaware corporation ("MERGER
SUB"), and at any adjournment thereof or any other meeting for consideration of
any Acquisition Proposal (as defined in the Merger Agreement) or affecting the
Merger or any Acquisition Proposal, or to execute any written consent of
stockholders with respect to any of the foregoing (i) "FOR" approval and
adoption of the Merger Agreement, providing for the merger (the "MERGER") of
Merger Sub with and into the Company, and the Merger, (ii) "AGAINST" against any
proposal or offer with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving, or any purchase of any substantial portion of
the assets of, or any equity securities of, or any transaction that would
involve the transfer or potential transfer of control of, the Company other than
the Merger and any proposed action or transaction that would prevent or
intentionally delay consummation of the Merger or is otherwise inconsistent
therewith and (iii) on other matters as directed by Section 2 of that certain
Voting Agreement, dated as of December 18, 1999, between a certain stockholder
of the Company, the undersigned, and Parent (the "VOTING AGREEMENT"). This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms.
Dated __________________________, 1999
-------------------------------------
(Signature of Stockholder)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT") dated as of December 18, 1999,
between the undersigned stockholder ("STOCKHOLDER") of Maker Communications,
Inc., a Delaware corporation (the "COMPANY"), and Conexant Systems, Inc., a
Delaware corporation ("Parent").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Parent have entered into an Agreement and Plan of
Merger dated as of December 18, 1999 (the "MERGER AGREEMENT"), providing for the
merger of a wholly-owned subsidiary of Parent ("MERGER SUB") with and into the
Company (the "MERGER") pursuant to the terms and conditions thereof; and
WHEREAS, as an inducement and a condition to Parent entering into the
Merger Agreement, pursuant to which Stockholder will receive the consideration
provided for in the Merger Agreement in exchange for each share of Company
Common Stock, par value $0.01 per share, of Company (the "COMPANY COMMON STOCK")
owned by him, Stockholder has agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDER. Stockholder represents that such
Stockholder:
(a) is the beneficial owner of that number of shares of
Company Common Stock set forth opposite such Stockholder's name on
Exhibit A (such Stockholder's "SHARES");
(b) except as may be denoted in Exhibit A, does not
beneficially own (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "1934 ACT")) or own of record any shares
of Company Common Stock other than such Stockholder's Shares, but
excluding any shares of Company Common Stock which such Stockholder has
the right to obtain upon the exercise of stock options outstanding on
the date hereof; and
(c) has the right, power and authority to execute and deliver
this Agreement and the Proxy (as hereinafter defined) and to perform
such Stockholder's obligations under this Agreement and the Proxy, and
this Agreement and the Proxy has been duly executed and delivered by
such Stockholder and constitutes a valid and legally binding agreement
of such Stockholder, enforceable in accordance with its terms; and such
execution, delivery and performance by such Stockholder of this
Agreement and the Proxy will not (i) conflict with, require a consent,
waiver or approval under, or result in a breach of or default under,
any of the terms of any contract, commitment or other obligation
(written or oral) to which such Stockholder is a party or by which such
Stockholder is bound; (ii) violate any order, writ, injunction, decree
or statute, or any rule
or regulation, applicable to Stockholder or any of the properties or
assets of Stockholder; or (iii) result in the creation of, or impose
any obligation on such Stockholder to create, any Lien (as defined in
the Merger Agreement), charge or other encumbrance of any nature
whatsoever upon the Shares, other than in favor of Parent.
The representations and warranties contained herein shall be made as of the date
hereof and as of each date from the date hereof through and including the date
that the Merger is consummated or this Agreement is terminated in accordance
with its terms.
2. AGREEMENT TO VOTE SHARES. Stockholder shall be present (in person or
by proxy) and vote his Shares and any New Shares (as defined in Section 4
hereof), and shall cause any holder of record of his Shares or New Shares to be
present and vote, (a) in favor of adoption and approval of the Merger Agreement
and the Merger (and each other action and transaction contemplated by the Merger
Agreement or by this Agreement), (b) against any Acquisition Proposal (as
defined in the Merger Agreement) other than the Merger (or any other Acquisition
Proposal of Parent) and (c) against any proposed action or transaction that
would prevent or intentionally delay consummation of the Merger (or other
Acquisition Proposal of Parent) or is otherwise inconsistent therewith, and in
each case, at every meeting of the stockholders of the Company at which any such
matters are considered and at every adjournment thereof (and, if applicable, in
connection with any request or solicitation of written consents of
stockholders). Any such vote shall be cast, or consent shall be given, in
accordance with such procedures relating thereto as shall ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Stockholder shall deliver to
Parent upon request a proxy substantially in the form attached hereto as Exhibit
B (the "PROXY"), which proxy shall be coupled with an interest and irrevocable
to the extent permitted under Delaware law, with the total number of such
Stockholder's Shares and any New Shares correctly indicated thereon. Stockholder
hereby revokes any and all previous proxies granted with respect to his Shares.
Such irrevocable proxy is intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law. The
Stockholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Stockholder
shall also use his best efforts to take, or cause to be taken, all action, and
do, or cause to be done, all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this Agreement or
the Merger Agreement.
3. NO VOTING TRUSTS. After the date hereof, Stockholder agrees that he
will not, nor will he permit any entity under his control to, deposit any Shares
in a voting trust or subject any Shares to any Lien or agreement, arrangement or
understanding with respect to the voting of such Shares other than agreements
entered into with Parent.
4. ADDITIONAL SHARES. Stockholder agrees that in the event (a) of any
stock dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of stock of the Company on, of or affecting the Shares of
such Stockholder, (b) such Stockholder purchases or otherwise acquires
beneficial ownership of any shares of Company Common Stock
2
after the execution of this Agreement (including by exercise of options), or (c)
such Stockholder acquires the right to vote or share in the voting of any shares
of Company Common Stock other than the Shares (collectively, "NEW SHARES"), such
Stockholder shall deliver promptly to Parent upon request an irrevocable proxy
substantially in the form attached hereto as Exhibit B with respect to such New
Shares. Stockholder also agrees that any New Shares acquired or purchased by him
shall be subject to the terms of this Agreement and shall constitute Shares to
the same extent as if they were owned by such Stockholder on the date hereof.
5. NO ENCUMBRANCES.
(a) Except as expressly contemplated by this Agreement, Stockholder's
Shares and the certificates representing such Shares are now, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever (other than to the extent
set forth on Schedule 1 to this Agreement), except for any such encumbrances or
proxies arising hereunder.
(b) Except as may otherwise be agreed by Parent in writing and as
contemplated by those agreements or understandings set forth on Schedule II
hereto, the Stockholder shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of the Stockholder's Shares, or any interest therein
or (ii) enter into any contract, option or other agreement or understanding with
respect to any such transfer or any or all of the Stockholder's Shares, or any
interest therein.
6. ACQUISITION PROPOSALS. Stockholder agrees that such Stockholder,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement, (i) shall not, directly or indirectly,
solicit, encourage, initiate, participate in or otherwise facilitate or consent
to any negotiations, or consent to any negotiations, inquiries or discussions
with respect to any Acquisition Proposal and (ii) has terminated any discussions
or negotiations with, and the provision of information or data to, any Person
(other than Parent) respecting an Acquisition Proposal. Such Stockholder further
agrees that he shall not, directly or indirectly, provide any confidential
information or data to any Person (as defined in the Merger Agreement) relating
to or in contemplation of an Acquisition Proposal or engage in any negotiations
or discussions relating to or in contemplation of an Acquisition Proposal,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement. Such Stockholder will notify Parent
immediately if any inquiries, proposals or offers respecting an Acquisition
Proposal are received by, any such information or data is requested from, or any
such discussions or negotiations are sought to be initiated or continued with,
such Stockholder indicating, in connection with such notice, the name of such
Person and the material terms and conditions of any proposals or offers, and
shall keep Parent apprised with respect to the status and terms thereof.
7. AFFILIATES LETTER. Stockholder shall execute and deliver on a timely
basis an Affiliate Letter (as defined in the Merger Agreement).
3
8. RELIANCE BY PARENT. Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
9. SPECIFIC PERFORMANCE. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other parties if the
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other parties will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that any other party has adequate remedy at law. Each party
hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
10. HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns and shall not be assignable without the written consent
of all other parties hereto other than any assignment in whole or in part by
Parent.
11. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written oral, among the parties hereto with respect to the subject matter hereof
and contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
12. MISCELLANEOUS.
(a) EXPENSES. Each of the parties hereto shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the negotiation
of this Agreement, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the internal
laws of the State of Delaware without regard to principles of conflicts of law.
(d) SEVERABILITY. If any provision of this Agreement or the application
of such provision to any person or circumstances shall be held invalid by a
court of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
4
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(f) TERMINATION. This Agreement shall terminate upon the earliest to
occur of (A) the Effective Time (as defined in the Merger Agreement), (B) six
months after the occurrence of a termination of the Merger Agreement in
accordance with Section 7.1 (d), (e) or (f) thereof, (C) a termination of the
Merger Agreement in accordance with Section 7.1 (a), (c) or (g) thereof and (D)
six months after the Outside Date as defined in Section 7.1 (b) of the Merger
Agreement and the Merger Agreement is not otherwise terminated.
(g) HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement and no construction or
reference shall be derived therefrom.
(h) NOTICES. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and shall be deemed given
if delivered personally, telecopied (which is confirmed), or sent by overnight
courier (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(i) if to Parent, to:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx, Esq.
Telecopy No.: (000) 000-0000
5
(ii) if to the Stockholder, to such Stockholder c/o
Greylock Equity Limited Partnership
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy No.:
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(i) Stockholder shall cause certificates for the Shares and New Shares
to have typed or printed thereon a restrictive legend which shall read
substantially as follows (if and to the extent true and necessary in light of
legal and factual circumstances existing at such time):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN PROVISIONS AS SET FORTH IN THE VOTING AGREEMENT, DATED AS
OF DECEMBER 18, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF CONEXANT SYSTEMS, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES, WHICH CONTAINS RESTRICTIONS ON THE VOTING AND TRANSFER
THEREOF."
(j) CONSENT TO JURISDICTION, ETC. Each party hereto hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
Court of Chancery of the State of Delaware (unless such court asserts no
jurisdiction, in which case the parties hereto consent to the exclusive
jurisdiction of the courts of the State of Delaware) for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby (and each party hereto agrees not to commence any action,
suit or proceeding relating thereto except in such courts), and further agrees
that service of any process, summons, notice or document by U.S. registered mail
to the addresses set forth herein shall be effective service of process for any
such action, suit or proceeding brought against each party in such court. Each
party hereto hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby, in the Court of Chancery of the State
of Delaware (unless such court asserts no jurisdiction, in which case each party
consents to the exclusive jurisdiction of the courts of the State of Delaware).
Each party hereby further irrevocably and unconditionally waives and agrees not
to plead or to claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. Each of the
parties hereto also agrees that any final and unappealable judgment against a
party hereto in connection with any
6
action, suit or other proceeding that be conclusive and binding on such party
and that such award or judgment may be enforced in any court of competent
jurisdiction, either within or outside of the United States. A certified or
exemplified copy of such award or judgment shall be conclusive evidence of the
fact and amount of such award or judgment.
[Signature Pages Follow]
7
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
CONEXANT SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman & CEO
Confirmed and accepted as of the date first written above:
GREYLOCK EQUITY LIMITED
PARTNERSHIP
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: General Partner
EXHIBIT A
STOCKHOLDER
Number of Shares of
Name Company Common Stock Type of Ownership
---- -------------------- -----------------
Greylock Equity Limited 2,643,378 Beneficial
Partnership
EXHIBIT B
FORM OF PROXY
The undersigned stockholder, for consideration received, hereby
appoints [PARENT DESIGNEES] and each of them as my proxies, with full power of
substitution in each of them, to cast on behalf of the undersigned all votes
entitled to be cast by the holder of the shares of Company Common Stock, par
value $0.01 per share, of Maker Communications, Inc., a Delaware corporation
(the "COMPANY"), owned by the undersigned at the Special Meeting of Stockholders
of the Company to be held for the consideration of the Merger under the
Agreement and Plan of Merger, dated as of December 18, 1999 (the "MERGER
AGREEMENT"), among Conexant Systems, Inc., a Delaware corporation ("Parent"),
the Company and Merlot Acquisition, Corp., a Delaware corporation ("MERGER
SUB"), and at any adjournment thereof or any other meeting for consideration of
any Acquisition Proposal (as defined in the Merger Agreement) or affecting the
Merger or any Acquisition Proposal, or to execute any written consent of
stockholders with respect to any of the foregoing (i) "FOR" approval and
adoption of the Merger Agreement, providing for the merger (the "MERGER") of
Merger Sub with and into the Company, and the Merger, (ii) "AGAINST" against any
proposal or offer with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving, or any purchase of any substantial portion of
the assets of, or any equity securities of, or any transaction that would
involve the transfer or potential transfer of control of, the Company other than
the Merger and any proposed action or transaction that would prevent or
intentionally delay consummation of the Merger or is otherwise inconsistent
therewith and (iii) on other matters as directed by Section 2 of that certain
Voting Agreement, dated as of December 18, 1999, between a certain stockholder
of the Company, the undersigned, and Parent (the "VOTING AGREEMENT"). This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms.
Dated __________________________, 1999
-------------------------------------
(Signature of Stockholder)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT") dated as of December 18, 1999,
between the undersigned stockholder ("STOCKHOLDER") of Maker Communications,
Inc., a Delaware corporation (the "COMPANY"), and Conexant Systems, Inc., a
Delaware corporation ("Parent").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Parent have entered into an Agreement and Plan of
Merger dated as of December 18, 1999 (the "MERGER AGREEMENT"), providing for the
merger of a wholly-owned subsidiary of Parent ("MERGER SUB") with and into the
Company (the "MERGER") pursuant to the terms and conditions thereof; and
WHEREAS, as an inducement and a condition to Parent entering into the
Merger Agreement, pursuant to which Stockholder will receive the consideration
provided for in the Merger Agreement in exchange for each share of Company
Common Stock, par value $0.01 per share, of Company (the "COMPANY COMMON STOCK")
owned by him, Stockholder has agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDER. Stockholder represents that such
Stockholder:
(a) is the beneficial owner of that number of shares of
Company Common Stock set forth opposite such Stockholder's name on
Exhibit A (such Stockholder's "SHARES");
(b) except as may be denoted in Exhibit A, does not
beneficially own (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "1934 ACT")) or own of record any shares
of Company Common Stock other than such Stockholder's Shares, but
excluding any shares of Company Common Stock which such Stockholder has
the right to obtain upon the exercise of stock options outstanding on
the date hereof; and
(c) has the right, power and authority to execute and deliver
this Agreement and the Proxy (as hereinafter defined) and to perform
such Stockholder's obligations under this Agreement and the Proxy, and
this Agreement and the Proxy has been duly executed and delivered by
such Stockholder and constitutes a valid and legally binding agreement
of such Stockholder, enforceable in accordance with its terms; and such
execution, delivery and performance by such Stockholder of this
Agreement and the Proxy will not (i) conflict with, require a consent,
waiver or approval under, or result in a breach of or default under,
any of the terms of any contract, commitment or other obligation
(written or oral) to which such Stockholder is a party or by which such
Stockholder is bound; (ii) violate any order, writ, injunction, decree
or statute, or any rule
or regulation, applicable to Stockholder or any of the properties or
assets of Stockholder; or (iii) result in the creation of, or impose
any obligation on such Stockholder to create, any Lien (as defined in
the Merger Agreement), charge or other encumbrance of any nature
whatsoever upon the Shares, other than in favor of Parent.
The representations and warranties contained herein shall be made as of the date
hereof and as of each date from the date hereof through and including the date
that the Merger is consummated or this Agreement is terminated in accordance
with its terms.
2. AGREEMENT TO VOTE SHARES. Stockholder shall be present (in person or
by proxy) and vote his Shares and any New Shares (as defined in Section 4
hereof), and shall cause any holder of record of his Shares or New Shares to be
present and vote, (a) in favor of adoption and approval of the Merger Agreement
and the Merger (and each other action and transaction contemplated by the Merger
Agreement or by this Agreement), (b) against any Acquisition Proposal (as
defined in the Merger Agreement) other than the Merger (or any other Acquisition
Proposal of Parent) and (c) against any proposed action or transaction that
would prevent or intentionally delay consummation of the Merger (or other
Acquisition Proposal of Parent) or is otherwise inconsistent therewith, and in
each case, at every meeting of the stockholders of the Company at which any such
matters are considered and at every adjournment thereof (and, if applicable, in
connection with any request or solicitation of written consents of
stockholders). Any such vote shall be cast, or consent shall be given, in
accordance with such procedures relating thereto as shall ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Stockholder shall deliver to
Parent upon request a proxy substantially in the form attached hereto as Exhibit
B (the "PROXY"), which proxy shall be coupled with an interest and irrevocable
to the extent permitted under Delaware law, with the total number of such
Stockholder's Shares and any New Shares correctly indicated thereon. Stockholder
hereby revokes any and all previous proxies granted with respect to his Shares.
Such irrevocable proxy is intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law. The
Stockholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Stockholder
shall also use his best efforts to take, or cause to be taken, all action, and
do, or cause to be done, all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this Agreement or
the Merger Agreement.
3. NO VOTING TRUSTS. After the date hereof, Stockholder agrees that he
will not, nor will he permit any entity under his control to, deposit any Shares
in a voting trust or subject any Shares to any Lien or agreement, arrangement or
understanding with respect to the voting of such Shares other than agreements
entered into with Parent.
4. ADDITIONAL SHARES. Stockholder agrees that in the event (a) of any
stock dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of stock of the Company on, of or affecting the Shares of
such Stockholder, (b) such Stockholder purchases or otherwise acquires
beneficial ownership of any shares of Company Common Stock
2
after the execution of this Agreement (including by exercise of options), or (c)
such Stockholder acquires the right to vote or share in the voting of any shares
of Company Common Stock other than the Shares (collectively, "NEW SHARES"), such
Stockholder shall deliver promptly to Parent upon request an irrevocable proxy
substantially in the form attached hereto as Exhibit B with respect to such New
Shares. Stockholder also agrees that any New Shares acquired or purchased by him
shall be subject to the terms of this Agreement and shall constitute Shares to
the same extent as if they were owned by such Stockholder on the date hereof.
5. NO ENCUMBRANCES.
(a) Except as expressly contemplated by this Agreement, Stockholder's
Shares and the certificates representing such Shares are now, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever (other than to the extent
set forth on Schedule 1 to this Agreement), except for any such encumbrances or
proxies arising hereunder.
(b) Except as may otherwise be agreed by Parent in writing and as
contemplated by those agreements or understandings set forth on Schedule II
hereto, the Stockholder shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of the Stockholder's Shares, or any interest therein
or (ii) enter into any contract, option or other agreement or understanding with
respect to any such transfer or any or all of the Stockholder's Shares, or any
interest therein.
6. ACQUISITION PROPOSALS. Stockholder agrees that such Stockholder,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement, (i) shall not, directly or indirectly,
solicit, encourage, initiate, participate in or otherwise facilitate or consent
to any negotiations, or consent to any negotiations, inquiries or discussions
with respect to any Acquisition Proposal and (ii) has terminated any discussions
or negotiations with, and the provision of information or data to, any Person
(other than Parent) respecting an Acquisition Proposal. Such Stockholder further
agrees that he shall not, directly or indirectly, provide any confidential
information or data to any Person (as defined in the Merger Agreement) relating
to or in contemplation of an Acquisition Proposal or engage in any negotiations
or discussions relating to or in contemplation of an Acquisition Proposal,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement. Such Stockholder will notify Parent
immediately if any inquiries, proposals or offers respecting an Acquisition
Proposal are received by, any such information or data is requested from, or any
such discussions or negotiations are sought to be initiated or continued with,
such Stockholder indicating, in connection with such notice, the name of such
Person and the material terms and conditions of any proposals or offers, and
shall keep Parent apprised with respect to the status and terms thereof.
7. AFFILIATES LETTER. Stockholder shall execute and deliver on a timely
basis an Affiliate Letter (as defined in the Merger Agreement).
3
8. RELIANCE BY PARENT. Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
9. SPECIFIC PERFORMANCE. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other parties if the
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other parties will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that any other party has adequate remedy at law. Each party
hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
10. HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns and shall not be assignable without the written consent
of all other parties hereto other than any assignment in whole or in part by
Parent.
11. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written oral, among the parties hereto with respect to the subject matter hereof
and contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
12. MISCELLANEOUS.
(a) EXPENSES. Each of the parties hereto shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the negotiation
of this Agreement, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the internal
laws of the State of Delaware without regard to principles of conflicts of law.
(d) SEVERABILITY. If any provision of this Agreement or the application
of such provision to any person or circumstances shall be held invalid by a
court of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
4
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(f) TERMINATION. This Agreement shall terminate upon the earliest to
occur of (A) the Effective Time (as defined in the Merger Agreement), (B) six
months after the occurrence of a termination of the Merger Agreement in
accordance with Section 7.1 (d), (e) or (f) thereof, (C) a termination of the
Merger Agreement in accordance with Section 7.1 (a), (c) or (g) thereof and (D)
six months after the Outside Date as defined in Section 7.1 (b) of the Merger
Agreement and the Merger Agreement is not otherwise terminated.
(g) HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement and no construction or
reference shall be derived therefrom.
(h) NOTICES. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and shall be deemed given
if delivered personally, telecopied (which is confirmed), or sent by overnight
courier (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(i) if to Parent, to:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx, Esq.
Telecopy No.: (000) 000-0000
5
(ii) if to the Stockholder, to such Stockholder x/x
Xxxx Xxxxxxxxxx
00 Xxxxxxxxxxx
Xxxxxxxxx, XX 00000
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(i) Stockholder shall cause certificates for the Shares and New Shares
to have typed or printed thereon a restrictive legend which shall read
substantially as follows (if and to the extent true and necessary in light of
legal and factual circumstances existing at such time):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN PROVISIONS AS SET FORTH IN THE VOTING AGREEMENT, DATED AS
OF DECEMBER 18, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF CONEXANT SYSTEMS, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES, WHICH CONTAINS RESTRICTIONS ON THE VOTING AND TRANSFER
THEREOF."
(j) CONSENT TO JURISDICTION, ETC. Each party hereto hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
Court of Chancery of the State of Delaware (unless such court asserts no
jurisdiction, in which case the parties hereto consent to the exclusive
jurisdiction of the courts of the State of Delaware) for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby (and each party hereto agrees not to commence any action,
suit or proceeding relating thereto except in such courts), and further agrees
that service of any process, summons, notice or document by U.S. registered mail
to the addresses set forth herein shall be effective service of process for any
such action, suit or proceeding brought against each party in such court. Each
party hereto hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby, in the Court of Chancery of the State
of Delaware (unless such court asserts no jurisdiction, in which case each party
consents to the exclusive jurisdiction of the courts of the State of Delaware).
Each party hereby further irrevocably and unconditionally waives and agrees not
to plead or to claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. Each of the
parties hereto also agrees that any final and unappealable judgment against a
party hereto in connection with any action, suit or other proceeding that be
conclusive and binding on such party and that such award
6
or judgment may be enforced in any court of competent jurisdiction, either
within or outside of the United States. A certified or exemplified copy of such
award or judgment shall be conclusive evidence of the fact and amount of such
award or judgment.
[Signature Pages Follow]
7
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
CONEXANT SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman & CEO
Confirmed and accepted as of the date first written above:
By: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxxx
EXHIBIT A
STOCKHOLDER
Number of Shares of
Name Company Common Stock Type of Ownership
---- -------------------- -----------------
Xxxx Xxxxxxxxxx 989,619 Beneficial
EXHIBIT B
FORM OF PROXY
The undersigned stockholder, for consideration received, hereby
appoints [PARENT DESIGNEES] and each of them as my proxies, with full power of
substitution in each of them, to cast on behalf of the undersigned all votes
entitled to be cast by the holder of the shares of Company Common Stock, par
value $0.01 per share, of Maker Communications, Inc., a Delaware corporation
(the "COMPANY"), owned by the undersigned at the Special Meeting of Stockholders
of the Company to be held for the consideration of the Merger under the
Agreement and Plan of Merger, dated as of December 18, 1999 (the "MERGER
AGREEMENT"), among Conexant Systems, Inc., a Delaware corporation ("Parent"),
the Company and Merlot Acquisition, Corp., a Delaware corporation ("MERGER
SUB"), and at any adjournment thereof or any other meeting for consideration of
any Acquisition Proposal (as defined in the Merger Agreement) or affecting the
Merger or any Acquisition Proposal, or to execute any written consent of
stockholders with respect to any of the foregoing (i) "FOR" approval and
adoption of the Merger Agreement, providing for the merger (the "MERGER") of
Merger Sub with and into the Company, and the Merger, (ii) "AGAINST" against any
proposal or offer with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving, or any purchase of any substantial portion of
the assets of, or any equity securities of, or any transaction that would
involve the transfer or potential transfer of control of, the Company other than
the Merger and any proposed action or transaction that would prevent or
intentionally delay consummation of the Merger or is otherwise inconsistent
therewith and (iii) on other matters as directed by Section 2 of that certain
Voting Agreement, dated as of December 18, 1999, between a certain stockholder
of the Company, the undersigned, and Parent (the "VOTING AGREEMENT"). This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms.
Dated __________________________, 1999
-------------------------------------
(Signature of Stockholder)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT") dated as of December 18, 1999,
between the undersigned stockholder ("STOCKHOLDER") of Maker Communications,
Inc., a Delaware corporation (the "COMPANY"), and Conexant Systems, Inc., a
Delaware corporation ("Parent").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Parent have entered into an Agreement and Plan of
Merger dated as of December 18, 1999 (the "MERGER AGREEMENT"), providing for the
merger of a wholly-owned subsidiary of Parent ("MERGER SUB") with and into the
Company (the "MERGER") pursuant to the terms and conditions thereof; and
WHEREAS, as an inducement and a condition to Parent entering into the
Merger Agreement, pursuant to which Stockholder will receive the consideration
provided for in the Merger Agreement in exchange for each share of Company
Common Stock, par value $0.01 per share, of Company (the "COMPANY COMMON STOCK")
owned by him, Stockholder has agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDER. Stockholder represents that such
Stockholder:
(a) is the beneficial owner of that number of shares of
Company Common Stock set forth opposite such Stockholder's name on
Exhibit A (such Stockholder's "SHARES");
(b) except as may be denoted in Exhibit A, does not
beneficially own (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "1934 ACT")) or own of record any shares
of Company Common Stock other than such Stockholder's Shares, but
excluding any shares of Company Common Stock which such Stockholder has
the right to obtain upon the exercise of stock options outstanding on
the date hereof; and
(c) has the right, power and authority to execute and deliver
this Agreement and the Proxy (as hereinafter defined) and to perform
such Stockholder's obligations under this Agreement and the Proxy, and
this Agreement and the Proxy has been duly executed and delivered by
such Stockholder and constitutes a valid and legally binding agreement
of such Stockholder, enforceable in accordance with its terms; and such
execution, delivery and performance by such Stockholder of this
Agreement and the Proxy will not (i) conflict with, require a consent,
waiver or approval under, or result in a breach of or default under,
any of the terms of any contract, commitment or other obligation
(written or oral) to which such Stockholder is a party or by which such
Stockholder is bound; (ii) violate any order, writ, injunction, decree
or statute, or any rule
or regulation, applicable to Stockholder or any of the properties or
assets of Stockholder; or (iii) result in the creation of, or impose
any obligation on such Stockholder to create, any Lien (as defined in
the Merger Agreement), charge or other encumbrance of any nature
whatsoever upon the Shares, other than in favor of Parent.
The representations and warranties contained herein shall be made as of the date
hereof and as of each date from the date hereof through and including the date
that the Merger is consummated or this Agreement is terminated in accordance
with its terms.
2. AGREEMENT TO VOTE SHARES. Stockholder shall be present (in person or
by proxy) and vote his Shares and any New Shares (as defined in Section 4
hereof), and shall cause any holder of record of his Shares or New Shares to be
present and vote, (a) in favor of adoption and approval of the Merger Agreement
and the Merger (and each other action and transaction contemplated by the Merger
Agreement or by this Agreement), (b) against any Acquisition Proposal (as
defined in the Merger Agreement) other than the Merger (or any other Acquisition
Proposal of Parent) and (c) against any proposed action or transaction that
would prevent or intentionally delay consummation of the Merger (or other
Acquisition Proposal of Parent) or is otherwise inconsistent therewith, and in
each case, at every meeting of the stockholders of the Company at which any such
matters are considered and at every adjournment thereof (and, if applicable, in
connection with any request or solicitation of written consents of
stockholders). Any such vote shall be cast, or consent shall be given, in
accordance with such procedures relating thereto as shall ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Stockholder shall deliver to
Parent upon request a proxy substantially in the form attached hereto as Exhibit
B (the "PROXY"), which proxy shall be coupled with an interest and irrevocable
to the extent permitted under Delaware law, with the total number of such
Stockholder's Shares and any New Shares correctly indicated thereon. Stockholder
hereby revokes any and all previous proxies granted with respect to his Shares.
Such irrevocable proxy is intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law. The
Stockholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Stockholder
shall also use his best efforts to take, or cause to be taken, all action, and
do, or cause to be done, all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this Agreement or
the Merger Agreement.
3. NO VOTING TRUSTS. After the date hereof, Stockholder agrees that he
will not, nor will he permit any entity under his control to, deposit any Shares
in a voting trust or subject any Shares to any Lien or agreement, arrangement or
understanding with respect to the voting of such Shares other than agreements
entered into with Parent.
4. ADDITIONAL SHARES. Stockholder agrees that in the event (a) of any
stock dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of stock of the Company on, of or affecting the Shares of
such Stockholder, (b) such Stockholder purchases or otherwise acquires
beneficial ownership of any shares of Company Common Stock
2
after the execution of this Agreement (including by exercise of options), or (c)
such Stockholder acquires the right to vote or share in the voting of any shares
of Company Common Stock other than the Shares (collectively, "NEW SHARES"), such
Stockholder shall deliver promptly to Parent upon request an irrevocable proxy
substantially in the form attached hereto as Exhibit B with respect to such New
Shares. Stockholder also agrees that any New Shares acquired or purchased by him
shall be subject to the terms of this Agreement and shall constitute Shares to
the same extent as if they were owned by such Stockholder on the date hereof.
5. NO ENCUMBRANCES.
(a) Except as expressly contemplated by this Agreement, Stockholder's
Shares and the certificates representing such Shares are now, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever (other than to the extent
set forth on Schedule 1 to this Agreement), except for any such encumbrances or
proxies arising hereunder.
(b) Except as may otherwise be agreed by Parent in writing and as
contemplated by those agreements or understandings set forth on Schedule II
hereto, the Stockholder shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of the Stockholder's Shares, or any interest therein
or (ii) enter into any contract, option or other agreement or understanding with
respect to any such transfer or any or all of the Stockholder's Shares, or any
interest therein.
6. ACQUISITION PROPOSALS. Stockholder agrees that such Stockholder,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement, (i) shall not, directly or indirectly,
solicit, encourage, initiate, participate in or otherwise facilitate or consent
to any negotiations, or consent to any negotiations, inquiries or discussions
with respect to any Acquisition Proposal and (ii) has terminated any discussions
or negotiations with, and the provision of information or data to, any Person
(other than Parent) respecting an Acquisition Proposal. Such Stockholder further
agrees that he shall not, directly or indirectly, provide any confidential
information or data to any Person (as defined in the Merger Agreement) relating
to or in contemplation of an Acquisition Proposal or engage in any negotiations
or discussions relating to or in contemplation of an Acquisition Proposal,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement. Such Stockholder will notify Parent
immediately if any inquiries, proposals or offers respecting an Acquisition
Proposal are received by, any such information or data is requested from, or any
such discussions or negotiations are sought to be initiated or continued with,
such Stockholder indicating, in connection with such notice, the name of such
Person and the material terms and conditions of any proposals or offers, and
shall keep Parent apprised with respect to the status and terms thereof.
7. AFFILIATES LETTER. Stockholder shall execute and deliver on a timely
basis an Affiliate Letter (as defined in the Merger Agreement).
3
8. RELIANCE BY PARENT. Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
9. SPECIFIC PERFORMANCE. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other parties if the
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other parties will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that any other party has adequate remedy at law. Each party
hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
10. HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns and shall not be assignable without the written consent
of all other parties hereto other than any assignment in whole or in part by
Parent.
11. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written oral, among the parties hereto with respect to the subject matter hereof
and contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
12. MISCELLANEOUS.
(a) EXPENSES. Each of the parties hereto shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the negotiation
of this Agreement, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the internal
laws of the State of Delaware without regard to principles of conflicts of law.
(d) SEVERABILITY. If any provision of this Agreement or the application
of such provision to any person or circumstances shall be held invalid by a
court of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
4
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(f) TERMINATION. This Agreement shall terminate upon the earliest to
occur of (A) the Effective Time (as defined in the Merger Agreement), (B) six
months after the occurrence of a termination of the Merger Agreement in
accordance with Section 7.1 (d), (e) or (f) thereof, (C) a termination of the
Merger Agreement in accordance with Section 7.1 (a), (c) or (g) thereof and (D)
six months after the Outside Date as defined in Section 7.1 (b) of the Merger
Agreement and the Merger Agreement is not otherwise terminated.
(g) HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement and no construction or
reference shall be derived therefrom.
(h) NOTICES. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and shall be deemed given
if delivered personally, telecopied (which is confirmed), or sent by overnight
courier (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(i) if to Parent, to:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx, Esq.
Telecopy No.: (000) 000-0000
5
(ii) if to the Stockholder, to such Stockholder c/o
Xxxxxx Xxxxxx
0 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(i) Stockholder shall cause certificates for the Shares and New Shares
to have typed or printed thereon a restrictive legend which shall read
substantially as follows (if and to the extent true and necessary in light of
legal and factual circumstances existing at such time):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN PROVISIONS AS SET FORTH IN THE VOTING AGREEMENT, DATED AS
OF DECEMBER 18, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF CONEXANT SYSTEMS, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES, WHICH CONTAINS RESTRICTIONS ON THE VOTING AND TRANSFER
THEREOF."
(j) CONSENT TO JURISDICTION, ETC. Each party hereto hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
Court of Chancery of the State of Delaware (unless such court asserts no
jurisdiction, in which case the parties hereto consent to the exclusive
jurisdiction of the courts of the State of Delaware) for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby (and each party hereto agrees not to commence any action,
suit or proceeding relating thereto except in such courts), and further agrees
that service of any process, summons, notice or document by U.S. registered mail
to the addresses set forth herein shall be effective service of process for any
such action, suit or proceeding brought against each party in such court. Each
party hereto hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby, in the Court of Chancery of the State
of Delaware (unless such court asserts no jurisdiction, in which case each party
consents to the exclusive jurisdiction of the courts of the State of Delaware).
Each party hereby further irrevocably and unconditionally waives and agrees not
to plead or to claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. Each of the
parties hereto also agrees that any final and unappealable judgment against a
party hereto in connection with any action, suit or other proceeding that be
conclusive and binding on such party and that such award
6
or judgment may be enforced in any court of competent jurisdiction, either
within or outside of the United States. A certified or exemplified copy of such
award or judgment shall be conclusive evidence of the fact and amount of such
award or judgment.
[Signature Pages Follow]
7
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
CONEXANT SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman & CEO
Confirmed and accepted as of the date first written above:
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
EXHIBIT A
STOCKHOLDER
Number of Shares of
Name Company Common Stock Type of Ownership
---- -------------------- -----------------
Xxxxxx Xxxxxx 317,000 Beneficial
EXHIBIT B
FORM OF PROXY
The undersigned stockholder, for consideration received, hereby
appoints [PARENT DESIGNEES] and each of them as my proxies, with full power of
substitution in each of them, to cast on behalf of the undersigned all votes
entitled to be cast by the holder of the shares of Company Common Stock, par
value $0.01 per share, of Maker Communications, Inc., a Delaware corporation
(the "COMPANY"), owned by the undersigned at the Special Meeting of Stockholders
of the Company to be held for the consideration of the Merger under the
Agreement and Plan of Merger, dated as of December 18, 1999 (the "MERGER
AGREEMENT"), among Conexant Systems, Inc., a Delaware corporation ("Parent"),
the Company and Merlot Acquisition, Corp., a Delaware corporation ("MERGER
SUB"), and at any adjournment thereof or any other meeting for consideration of
any Acquisition Proposal (as defined in the Merger Agreement) or affecting the
Merger or any Acquisition Proposal, or to execute any written consent of
stockholders with respect to any of the foregoing (i) "FOR" approval and
adoption of the Merger Agreement, providing for the merger (the "MERGER") of
Merger Sub with and into the Company, and the Merger, (ii) "AGAINST" against any
proposal or offer with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving, or any purchase of any substantial portion of
the assets of, or any equity securities of, or any transaction that would
involve the transfer or potential transfer of control of, the Company other than
the Merger and any proposed action or transaction that would prevent or
intentionally delay consummation of the Merger or is otherwise inconsistent
therewith and (iii) on other matters as directed by Section 2 of that certain
Voting Agreement, dated as of December 18, 1999, between a certain stockholder
of the Company, the undersigned, and Parent (the "VOTING AGREEMENT"). This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms.
Dated __________________________, 1999
-------------------------------------
(Signature of Stockholder)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT") dated as of December 18, 1999,
between the undersigned stockholder ("STOCKHOLDER") of Maker Communications,
Inc., a Delaware corporation (the "COMPANY"), and Conexant Systems, Inc., a
Delaware corporation ("Parent").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Parent have entered into an Agreement and Plan of
Merger dated as of December 18, 1999 (the "MERGER AGREEMENT"), providing for the
merger of a wholly-owned subsidiary of Parent ("MERGER SUB") with and into the
Company (the "MERGER") pursuant to the terms and conditions thereof; and
WHEREAS, as an inducement and a condition to Parent entering into the
Merger Agreement, pursuant to which Stockholder will receive the consideration
provided for in the Merger Agreement in exchange for each share of Company
Common Stock, par value $0.01 per share, of Company (the "COMPANY COMMON STOCK")
owned by him, Stockholder has agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDER. Stockholder represents that such
Stockholder:
(a) is the beneficial owner of that number of shares of
Company Common Stock set forth opposite such Stockholder's name on
Exhibit A (such Stockholder's "SHARES");
(b) except as may be denoted in Exhibit A, does not
beneficially own (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "1934 ACT")) or own of record any shares
of Company Common Stock other than such Stockholder's Shares, but
excluding any shares of Company Common Stock which such Stockholder has
the right to obtain upon the exercise of stock options outstanding on
the date hereof; and
(c) has the right, power and authority to execute and deliver
this Agreement and the Proxy (as hereinafter defined) and to perform
such Stockholder's obligations under this Agreement and the Proxy, and
this Agreement and the Proxy has been duly executed and delivered by
such Stockholder and constitutes a valid and legally binding agreement
of such Stockholder, enforceable in accordance with its terms; and such
execution, delivery and performance by such Stockholder of this
Agreement and the Proxy will not (i) conflict with, require a consent,
waiver or approval under, or result in a breach of or default under,
any of the terms of any contract, commitment or other obligation
(written or oral) to which such Stockholder is a party or by which such
Stockholder is bound; (ii) violate any order, writ, injunction, decree
or statute, or any rule
or regulation, applicable to Stockholder or any of the properties or
assets of Stockholder; or (iii) result in the creation of, or impose
any obligation on such Stockholder to create, any Lien (as defined in
the Merger Agreement), charge or other encumbrance of any nature
whatsoever upon the Shares, other than in favor of Parent.
The representations and warranties contained herein shall be made as of the date
hereof and as of each date from the date hereof through and including the date
that the Merger is consummated or this Agreement is terminated in accordance
with its terms.
2. AGREEMENT TO VOTE SHARES. Stockholder shall be present (in person or
by proxy) and vote his Shares and any New Shares (as defined in Section 4
hereof), and shall cause any holder of record of his Shares or New Shares to be
present and vote, (a) in favor of adoption and approval of the Merger Agreement
and the Merger (and each other action and transaction contemplated by the Merger
Agreement or by this Agreement), (b) against any Acquisition Proposal (as
defined in the Merger Agreement) other than the Merger (or any other Acquisition
Proposal of Parent) and (c) against any proposed action or transaction that
would prevent or intentionally delay consummation of the Merger (or other
Acquisition Proposal of Parent) or is otherwise inconsistent therewith, and in
each case, at every meeting of the stockholders of the Company at which any such
matters are considered and at every adjournment thereof (and, if applicable, in
connection with any request or solicitation of written consents of
stockholders). Any such vote shall be cast, or consent shall be given, in
accordance with such procedures relating thereto as shall ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Stockholder shall deliver to
Parent upon request a proxy substantially in the form attached hereto as Exhibit
B (the "PROXY"), which proxy shall be coupled with an interest and irrevocable
to the extent permitted under Delaware law, with the total number of such
Stockholder's Shares and any New Shares correctly indicated thereon. Stockholder
hereby revokes any and all previous proxies granted with respect to his Shares.
Such irrevocable proxy is intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law. The
Stockholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Stockholder
shall also use his best efforts to take, or cause to be taken, all action, and
do, or cause to be done, all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this Agreement or
the Merger Agreement.
3. NO VOTING TRUSTS. After the date hereof, Stockholder agrees that he
will not, nor will he permit any entity under his control to, deposit any Shares
in a voting trust or subject any Shares to any Lien or agreement, arrangement or
understanding with respect to the voting of such Shares other than agreements
entered into with Parent.
4. ADDITIONAL SHARES. Stockholder agrees that in the event (a) of any
stock dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of stock of the Company on, of or affecting the Shares of
such Stockholder, (b) such Stockholder purchases or otherwise acquires
beneficial ownership of any shares of Company Common Stock
2
after the execution of this Agreement (including by exercise of options), or (c)
such Stockholder acquires the right to vote or share in the voting of any shares
of Company Common Stock other than the Shares (collectively, "NEW SHARES"), such
Stockholder shall deliver promptly to Parent upon request an irrevocable proxy
substantially in the form attached hereto as Exhibit B with respect to such New
Shares. Stockholder also agrees that any New Shares acquired or purchased by him
shall be subject to the terms of this Agreement and shall constitute Shares to
the same extent as if they were owned by such Stockholder on the date hereof.
5. NO ENCUMBRANCES.
(a) Except as expressly contemplated by this Agreement, Stockholder's
Shares and the certificates representing such Shares are now, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever (other than to the extent
set forth on Schedule 1 to this Agreement), except for any such encumbrances or
proxies arising hereunder.
(b) Except as may otherwise be agreed by Parent in writing and as
contemplated by those agreements or understandings set forth on Schedule II
hereto, the Stockholder shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of the Stockholder's Shares, or any interest therein
or (ii) enter into any contract, option or other agreement or understanding with
respect to any such transfer or any or all of the Stockholder's Shares, or any
interest therein.
6. ACQUISITION PROPOSALS. Stockholder agrees that such Stockholder,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement, (i) shall not, directly or indirectly,
solicit, encourage, initiate, participate in or otherwise facilitate or consent
to any negotiations, or consent to any negotiations, inquiries or discussions
with respect to any Acquisition Proposal and (ii) has terminated any discussions
or negotiations with, and the provision of information or data to, any Person
(other than Parent) respecting an Acquisition Proposal. Such Stockholder further
agrees that he shall not, directly or indirectly, provide any confidential
information or data to any Person (as defined in the Merger Agreement) relating
to or in contemplation of an Acquisition Proposal or engage in any negotiations
or discussions relating to or in contemplation of an Acquisition Proposal,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement. Such Stockholder will notify Parent
immediately if any inquiries, proposals or offers respecting an Acquisition
Proposal are received by, any such information or data is requested from, or any
such discussions or negotiations are sought to be initiated or continued with,
such Stockholder indicating, in connection with such notice, the name of such
Person and the material terms and conditions of any proposals or offers, and
shall keep Parent apprised with respect to the status and terms thereof.
7. AFFILIATES LETTER. Stockholder shall execute and deliver on a timely
basis an Affiliate Letter (as defined in the Merger Agreement).
3
8. RELIANCE BY PARENT. Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
9. SPECIFIC PERFORMANCE. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other parties if the
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other parties will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that any other party has adequate remedy at law. Each party
hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
10. HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns and shall not be assignable without the written consent
of all other parties hereto other than any assignment in whole or in part by
Parent.
11. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written oral, among the parties hereto with respect to the subject matter hereof
and contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
12. MISCELLANEOUS.
(a) EXPENSES. Each of the parties hereto shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the negotiation
of this Agreement, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the internal
laws of the State of Delaware without regard to principles of conflicts of law.
(d) SEVERABILITY. If any provision of this Agreement or the application
of such provision to any person or circumstances shall be held invalid by a
court of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
4
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(f) TERMINATION. This Agreement shall terminate upon the earliest to
occur of (A) the Effective Time (as defined in the Merger Agreement), (B) six
months after the occurrence of a termination of the Merger Agreement in
accordance with Section 7.1 (d), (e) or (f) thereof, (C) a termination of the
Merger Agreement in accordance with Section 7.1 (a), (c) or (g) thereof and (D)
six months after the Outside Date as defined in Section 7.1 (b) of the Merger
Agreement and the Merger Agreement is not otherwise terminated.
(g) HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement and no construction or
reference shall be derived therefrom.
(h) NOTICES. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and shall be deemed given
if delivered personally, telecopied (which is confirmed), or sent by overnight
courier (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(i) if to Parent, to:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx, Esq.
Telecopy No.: (000) 000-0000
5
(ii) if to the Stockholder, to such Stockholder x/x
Xxxxxxxx Xxxxxxx Partners IV L.P.
Bessemer Trust Company
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telecopy No.:
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(i) Stockholder shall cause certificates for the Shares and New Shares
to have typed or printed thereon a restrictive legend which shall read
substantially as follows (if and to the extent true and necessary in light of
legal and factual circumstances existing at such time):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN PROVISIONS AS SET FORTH IN THE VOTING AGREEMENT, DATED AS
OF DECEMBER 18, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF CONEXANT SYSTEMS, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES, WHICH CONTAINS RESTRICTIONS ON THE VOTING AND TRANSFER
THEREOF."
(j) CONSENT TO JURISDICTION, ETC. Each party hereto hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
Court of Chancery of the State of Delaware (unless such court asserts no
jurisdiction, in which case the parties hereto consent to the exclusive
jurisdiction of the courts of the State of Delaware) for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby (and each party hereto agrees not to commence any action,
suit or proceeding relating thereto except in such courts), and further agrees
that service of any process, summons, notice or document by U.S. registered mail
to the addresses set forth herein shall be effective service of process for any
such action, suit or proceeding brought against each party in such court. Each
party hereto hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby, in the Court of Chancery of the State
of Delaware (unless such court asserts no jurisdiction, in which case each party
consents to the exclusive jurisdiction of the courts of the State of Delaware).
Each party hereby further irrevocably and unconditionally waives and agrees not
to plead or to claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. Each of the
parties hereto also
6
agrees that any final and unappealable judgment against a party hereto in
connection with any action, suit or other proceeding that be conclusive and
binding on such party and that such award or judgment may be enforced in any
court of competent jurisdiction, either within or outside of the United States.
A certified or exemplified copy of such award or judgment shall be conclusive
evidence of the fact and amount of such award or judgment.
[Signature Pages Follow]
7
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
CONEXANT SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman & CEO
Confirmed and accepted as of the date first written above:
BESSEMER VENTURE PARTNERS IV L.P.
By: /s/ Dear IV & Co. LLC
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager
EXHIBIT A
STOCKHOLDER
Number of Shares of
Name Company Common Stock Type of Ownership
---- -------------------- -----------------
Bessemer Venture Partners IV L.P. 851,990 Beneficial
EXHIBIT B
FORM OF PROXY
The undersigned stockholder, for consideration received, hereby
appoints [PARENT DESIGNEES] and each of them as my proxies, with full power of
substitution in each of them, to cast on behalf of the undersigned all votes
entitled to be cast by the holder of the shares of Company Common Stock, par
value $0.01 per share, of Maker Communications, Inc., a Delaware corporation
(the "COMPANY"), owned by the undersigned at the Special Meeting of Stockholders
of the Company to be held for the consideration of the Merger under the
Agreement and Plan of Merger, dated as of December 18, 1999 (the "MERGER
AGREEMENT"), among Conexant Systems, Inc., a Delaware corporation ("Parent"),
the Company and Merlot Acquisition, Corp., a Delaware corporation ("MERGER
SUB"), and at any adjournment thereof or any other meeting for consideration of
any Acquisition Proposal (as defined in the Merger Agreement) or affecting the
Merger or any Acquisition Proposal, or to execute any written consent of
stockholders with respect to any of the foregoing (i) "FOR" approval and
adoption of the Merger Agreement, providing for the merger (the "MERGER") of
Merger Sub with and into the Company, and the Merger, (ii) "AGAINST" against any
proposal or offer with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving, or any purchase of any substantial portion of
the assets of, or any equity securities of, or any transaction that would
involve the transfer or potential transfer of control of, the Company other than
the Merger and any proposed action or transaction that would prevent or
intentionally delay consummation of the Merger or is otherwise inconsistent
therewith and (iii) on other matters as directed by Section 2 of that certain
Voting Agreement, dated as of December 18, 1999, between a certain stockholder
of the Company, the undersigned, and Parent (the "VOTING AGREEMENT"). This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms.
Dated __________________________, 1999
-------------------------------------
(Signature of Stockholder)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT") dated as of December 18, 1999,
between the undersigned stockholder ("STOCKHOLDER") of Maker Communications,
Inc., a Delaware corporation (the "COMPANY"), and Conexant Systems, Inc., a
Delaware corporation ("Parent").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Parent have entered into an Agreement and Plan of
Merger dated as of December 18, 1999 (the "MERGER AGREEMENT"), providing for the
merger of a wholly-owned subsidiary of Parent ("MERGER SUB") with and into the
Company (the "MERGER") pursuant to the terms and conditions thereof; and
WHEREAS, as an inducement and a condition to Parent entering into the
Merger Agreement, pursuant to which Stockholder will receive the consideration
provided for in the Merger Agreement in exchange for each share of Company
Common Stock, par value $0.01 per share, of Company (the "COMPANY COMMON STOCK")
owned by him, Stockholder has agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDER. Stockholder represents that such
Stockholder:
(a) is the beneficial owner of that number of shares of
Company Common Stock set forth opposite such Stockholder's name on
Exhibit A (such Stockholder's "SHARES");
(b) except as may be denoted in Exhibit A, does not
beneficially own (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "1934 ACT")) or own of record any shares
of Company Common Stock other than such Stockholder's Shares, but
excluding any shares of Company Common Stock which such Stockholder has
the right to obtain upon the exercise of stock options outstanding on
the date hereof; and
(c) has the right, power and authority to execute and deliver
this Agreement and the Proxy (as hereinafter defined) and to perform
such Stockholder's obligations under this Agreement and the Proxy, and
this Agreement and the Proxy has been duly executed and delivered by
such Stockholder and constitutes a valid and legally binding agreement
of such Stockholder, enforceable in accordance with its terms; and such
execution, delivery and performance by such Stockholder of this
Agreement and the Proxy will not (i) conflict with, require a consent,
waiver or approval under, or result in a breach of or default under,
any of the terms of any contract, commitment or other obligation
(written or oral) to which such Stockholder is a party or by which such
Stockholder is bound; (ii) violate any order, writ, injunction, decree
or statute, or any rule
or regulation, applicable to Stockholder or any of the properties or
assets of Stockholder; or (iii) result in the creation of, or impose
any obligation on such Stockholder to create, any Lien (as defined in
the Merger Agreement), charge or other encumbrance of any nature
whatsoever upon the Shares, other than in favor of Parent.
The representations and warranties contained herein shall be made as of the date
hereof and as of each date from the date hereof through and including the date
that the Merger is consummated or this Agreement is terminated in accordance
with its terms.
2. AGREEMENT TO VOTE SHARES. Stockholder shall be present (in person or
by proxy) and vote his Shares and any New Shares (as defined in Section 4
hereof), and shall cause any holder of record of his Shares or New Shares to be
present and vote, (a) in favor of adoption and approval of the Merger Agreement
and the Merger (and each other action and transaction contemplated by the Merger
Agreement or by this Agreement), (b) against any Acquisition Proposal (as
defined in the Merger Agreement) other than the Merger (or any other Acquisition
Proposal of Parent) and (c) against any proposed action or transaction that
would prevent or intentionally delay consummation of the Merger (or other
Acquisition Proposal of Parent) or is otherwise inconsistent therewith, and in
each case, at every meeting of the stockholders of the Company at which any such
matters are considered and at every adjournment thereof (and, if applicable, in
connection with any request or solicitation of written consents of
stockholders). Any such vote shall be cast, or consent shall be given, in
accordance with such procedures relating thereto as shall ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Stockholder shall deliver to
Parent upon request a proxy substantially in the form attached hereto as Exhibit
B (the "PROXY"), which proxy shall be coupled with an interest and irrevocable
to the extent permitted under Delaware law, with the total number of such
Stockholder's Shares and any New Shares correctly indicated thereon. Stockholder
hereby revokes any and all previous proxies granted with respect to his Shares.
Such irrevocable proxy is intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law. The
Stockholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Stockholder
shall also use his best efforts to take, or cause to be taken, all action, and
do, or cause to be done, all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this Agreement or
the Merger Agreement.
3. NO VOTING TRUSTS. After the date hereof, Stockholder agrees that he
will not, nor will he permit any entity under his control to, deposit any Shares
in a voting trust or subject any Shares to any Lien or agreement, arrangement or
understanding with respect to the voting of such Shares other than agreements
entered into with Parent.
4. ADDITIONAL SHARES. Stockholder agrees that in the event (a) of any
stock dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of stock of the Company on, of or affecting the Shares of
such Stockholder, (b) such Stockholder purchases or otherwise acquires
beneficial ownership of any shares of Company Common Stock
2
after the execution of this Agreement (including by exercise of options), or (c)
such Stockholder acquires the right to vote or share in the voting of any shares
of Company Common Stock other than the Shares (collectively, "NEW SHARES"), such
Stockholder shall deliver promptly to Parent upon request an irrevocable proxy
substantially in the form attached hereto as Exhibit B with respect to such New
Shares. Stockholder also agrees that any New Shares acquired or purchased by him
shall be subject to the terms of this Agreement and shall constitute Shares to
the same extent as if they were owned by such Stockholder on the date hereof.
5. NO ENCUMBRANCES.
(a) Except as expressly contemplated by this Agreement, Stockholder's
Shares and the certificates representing such Shares are now, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever (other than to the extent
set forth on Schedule 1 to this Agreement), except for any such encumbrances or
proxies arising hereunder.
(b) Except as may otherwise be agreed by Parent in writing and as
contemplated by those agreements or understandings set forth on Schedule II
hereto, the Stockholder shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of the Stockholder's Shares, or any interest therein
or (ii) enter into any contract, option or other agreement or understanding with
respect to any such transfer or any or all of the Stockholder's Shares, or any
interest therein.
6. ACQUISITION PROPOSALS. Stockholder agrees that such Stockholder,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement, (i) shall not, directly or indirectly,
solicit, encourage, initiate, participate in or otherwise facilitate or consent
to any negotiations, or consent to any negotiations, inquiries or discussions
with respect to any Acquisition Proposal and (ii) has terminated any discussions
or negotiations with, and the provision of information or data to, any Person
(other than Parent) respecting an Acquisition Proposal. Such Stockholder further
agrees that he shall not, directly or indirectly, provide any confidential
information or data to any Person (as defined in the Merger Agreement) relating
to or in contemplation of an Acquisition Proposal or engage in any negotiations
or discussions relating to or in contemplation of an Acquisition Proposal,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement. Such Stockholder will notify Parent
immediately if any inquiries, proposals or offers respecting an Acquisition
Proposal are received by, any such information or data is requested from, or any
such discussions or negotiations are sought to be initiated or continued with,
such Stockholder indicating, in connection with such notice, the name of such
Person and the material terms and conditions of any proposals or offers, and
shall keep Parent apprised with respect to the status and terms thereof.
7. AFFILIATES LETTER. Stockholder shall execute and deliver on a timely
basis an Affiliate Letter (as defined in the Merger Agreement).
3
8. RELIANCE BY PARENT. Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
9. SPECIFIC PERFORMANCE. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other parties if the
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other parties will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that any other party has adequate remedy at law. Each party
hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
10. HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns and shall not be assignable without the written consent
of all other parties hereto other than any assignment in whole or in part by
Parent.
11. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written oral, among the parties hereto with respect to the subject matter hereof
and contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
12. MISCELLANEOUS.
(a) EXPENSES. Each of the parties hereto shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the negotiation
of this Agreement, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the internal
laws of the State of Delaware without regard to principles of conflicts of law.
(d) SEVERABILITY. If any provision of this Agreement or the application
of such provision to any person or circumstances shall be held invalid by a
court of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
4
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(f) TERMINATION. This Agreement shall terminate upon the earliest to
occur of (A) the Effective Time (as defined in the Merger Agreement), (B) six
months after the occurrence of a termination of the Merger Agreement in
accordance with Section 7.1 (d), (e) or (f) thereof, (C) a termination of the
Merger Agreement in accordance with Section 7.1 (a), (c) or (g) thereof and (D)
six months after the Outside Date as defined in Section 7.1 (b) of the Merger
Agreement and the Merger Agreement is not otherwise terminated.
(g) HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement and no construction or
reference shall be derived therefrom.
(h) NOTICES. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and shall be deemed given
if delivered personally, telecopied (which is confirmed), or sent by overnight
courier (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(i) if to Parent, to:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx, Esq.
Telecopy No.: (000) 000-0000
5
(ii) if to the Stockholder, to such Stockholder c/o
Xxxxxxx X. Xxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(i) Stockholder shall cause certificates for the Shares and New Shares
to have typed or printed thereon a restrictive legend which shall read
substantially as follows (if and to the extent true and necessary in light of
legal and factual circumstances existing at such time):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN PROVISIONS AS SET FORTH IN THE VOTING AGREEMENT, DATED AS
OF DECEMBER 18, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF CONEXANT SYSTEMS, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES, WHICH CONTAINS RESTRICTIONS ON THE VOTING AND TRANSFER
THEREOF."
(j) CONSENT TO JURISDICTION, ETC. Each party hereto hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
Court of Chancery of the State of Delaware (unless such court asserts no
jurisdiction, in which case the parties hereto consent to the exclusive
jurisdiction of the courts of the State of Delaware) for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby (and each party hereto agrees not to commence any action,
suit or proceeding relating thereto except in such courts), and further agrees
that service of any process, summons, notice or document by U.S. registered mail
to the addresses set forth herein shall be effective service of process for any
such action, suit or proceeding brought against each party in such court. Each
party hereto hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby, in the Court of Chancery of the State
of Delaware (unless such court asserts no jurisdiction, in which case each party
consents to the exclusive jurisdiction of the courts of the State of Delaware).
Each party hereby further irrevocably and unconditionally waives and agrees not
to plead or to claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. Each of the
parties hereto also agrees that any final and unappealable judgment against a
party hereto in connection with any action, suit or other proceeding that be
conclusive and binding on such party and that such award
6
or judgment may be enforced in any court of competent jurisdiction, either
within or outside of the United States. A certified or exemplified copy of such
award or judgment shall be conclusive evidence of the fact and amount of such
award or judgment.
[Signature Pages Follow]
7
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
CONEXANT SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman & CEO
Confirmed and accepted as of the date first written above:
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
EXHIBIT A
STOCKHOLDER
Number of Shares of
Name Company Common Stock Type of Ownership
---- -------------------- -----------------
Xxxxxxx X. Xxxxxxx 895,007 Beneficial
EXHIBIT B
FORM OF PROXY
The undersigned stockholder, for consideration received, hereby
appoints [PARENT DESIGNEES] and each of them as my proxies, with full power of
substitution in each of them, to cast on behalf of the undersigned all votes
entitled to be cast by the holder of the shares of Company Common Stock, par
value $0.01 per share, of Maker Communications, Inc., a Delaware corporation
(the "COMPANY"), owned by the undersigned at the Special Meeting of Stockholders
of the Company to be held for the consideration of the Merger under the
Agreement and Plan of Merger, dated as of December 18, 1999 (the "MERGER
AGREEMENT"), among Conexant Systems, Inc., a Delaware corporation ("Parent"),
the Company and Merlot Acquisition, Corp., a Delaware corporation ("MERGER
SUB"), and at any adjournment thereof or any other meeting for consideration of
any Acquisition Proposal (as defined in the Merger Agreement) or affecting the
Merger or any Acquisition Proposal, or to execute any written consent of
stockholders with respect to any of the foregoing (i) "FOR" approval and
adoption of the Merger Agreement, providing for the merger (the "MERGER") of
Merger Sub with and into the Company, and the Merger, (ii) "AGAINST" against any
proposal or offer with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving, or any purchase of any substantial portion of
the assets of, or any equity securities of, or any transaction that would
involve the transfer or potential transfer of control of, the Company other than
the Merger and any proposed action or transaction that would prevent or
intentionally delay consummation of the Merger or is otherwise inconsistent
therewith and (iii) on other matters as directed by Section 2 of that certain
Voting Agreement, dated as of December 18, 1999, between a certain stockholder
of the Company, the undersigned, and Parent (the "VOTING AGREEMENT"). This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms.
Dated __________________________, 1999
-------------------------------------
(Signature of Stockholder)
VOTING AGREEMENT
VOTING AGREEMENT (the "AGREEMENT") dated as of December 18, 1999,
between the undersigned stockholder ("STOCKHOLDER") of Maker Communications,
Inc., a Delaware corporation (the "COMPANY"), and Conexant Systems, Inc., a
Delaware corporation ("Parent").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Parent have entered into an Agreement and Plan of
Merger dated as of December 18, 1999 (the "MERGER AGREEMENT"), providing for the
merger of a wholly-owned subsidiary of Parent ("MERGER SUB") with and into the
Company (the "MERGER") pursuant to the terms and conditions thereof; and
WHEREAS, as an inducement and a condition to Parent entering into the
Merger Agreement, pursuant to which Stockholder will receive the consideration
provided for in the Merger Agreement in exchange for each share of Company
Common Stock, par value $0.01 per share, of Company (the "COMPANY COMMON STOCK")
owned by him, Stockholder has agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. REPRESENTATIONS OF STOCKHOLDER. Stockholder represents that such
Stockholder:
(a) is the beneficial owner of that number of shares of
Company Common Stock set forth opposite such Stockholder's name on
Exhibit A (such Stockholder's "SHARES");
(b) except as may be denoted in Exhibit A, does not
beneficially own (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "1934 ACT")) or own of record any shares
of Company Common Stock other than such Stockholder's Shares, but
excluding any shares of Company Common Stock which such Stockholder has
the right to obtain upon the exercise of stock options outstanding on
the date hereof; and
(c) has the right, power and authority to execute and deliver
this Agreement and the Proxy (as hereinafter defined) and to perform
such Stockholder's obligations under this Agreement and the Proxy, and
this Agreement and the Proxy has been duly executed and delivered by
such Stockholder and constitutes a valid and legally binding agreement
of such Stockholder, enforceable in accordance with its terms; and such
execution, delivery and performance by such Stockholder of this
Agreement and the Proxy will not (i) conflict with, require a consent,
waiver or approval under, or result in a breach of or default under,
any of the terms of any contract, commitment or other obligation
(written or oral) to which such Stockholder is a party or by which such
Stockholder is bound; (ii) violate any order, writ, injunction, decree
or statute, or any rule
or regulation, applicable to Stockholder or any of the properties or
assets of Stockholder; or (iii) result in the creation of, or impose
any obligation on such Stockholder to create, any Lien (as defined in
the Merger Agreement), charge or other encumbrance of any nature
whatsoever upon the Shares, other than in favor of Parent.
The representations and warranties contained herein shall be made as of the date
hereof and as of each date from the date hereof through and including the date
that the Merger is consummated or this Agreement is terminated in accordance
with its terms.
2. AGREEMENT TO VOTE SHARES. Stockholder shall be present (in person or
by proxy) and vote his Shares and any New Shares (as defined in Section 4
hereof), and shall cause any holder of record of his Shares or New Shares to be
present and vote, (a) in favor of adoption and approval of the Merger Agreement
and the Merger (and each other action and transaction contemplated by the Merger
Agreement or by this Agreement), (b) against any Acquisition Proposal (as
defined in the Merger Agreement) other than the Merger (or any other Acquisition
Proposal of Parent) and (c) against any proposed action or transaction that
would prevent or intentionally delay consummation of the Merger (or other
Acquisition Proposal of Parent) or is otherwise inconsistent therewith, and in
each case, at every meeting of the stockholders of the Company at which any such
matters are considered and at every adjournment thereof (and, if applicable, in
connection with any request or solicitation of written consents of
stockholders). Any such vote shall be cast, or consent shall be given, in
accordance with such procedures relating thereto as shall ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Stockholder shall deliver to
Parent upon request a proxy substantially in the form attached hereto as Exhibit
B (the "PROXY"), which proxy shall be coupled with an interest and irrevocable
to the extent permitted under Delaware law, with the total number of such
Stockholder's Shares and any New Shares correctly indicated thereon. Stockholder
hereby revokes any and all previous proxies granted with respect to his Shares.
Such irrevocable proxy is intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law. The
Stockholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 2 is given in connection with the execution of
the Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Stockholder
shall also use his best efforts to take, or cause to be taken, all action, and
do, or cause to be done, all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this Agreement or
the Merger Agreement.
3. NO VOTING TRUSTS. After the date hereof, Stockholder agrees that he
will not, nor will he permit any entity under his control to, deposit any Shares
in a voting trust or subject any Shares to any Lien or agreement, arrangement or
understanding with respect to the voting of such Shares other than agreements
entered into with Parent.
4. ADDITIONAL SHARES. Stockholder agrees that in the event (a) of any
stock dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of stock of the Company on, of or affecting the Shares of
such Stockholder, (b) such Stockholder purchases or otherwise acquires
beneficial ownership of any shares of Company Common Stock
2
after the execution of this Agreement (including by exercise of options), or (c)
such Stockholder acquires the right to vote or share in the voting of any shares
of Company Common Stock other than the Shares (collectively, "NEW SHARES"), such
Stockholder shall deliver promptly to Parent upon request an irrevocable proxy
substantially in the form attached hereto as Exhibit B with respect to such New
Shares. Stockholder also agrees that any New Shares acquired or purchased by him
shall be subject to the terms of this Agreement and shall constitute Shares to
the same extent as if they were owned by such Stockholder on the date hereof.
5. NO ENCUMBRANCES.
(a) Except as expressly contemplated by this Agreement, Stockholder's
Shares and the certificates representing such Shares are now, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever (other than to the extent
set forth on Schedule 1 to this Agreement), except for any such encumbrances or
proxies arising hereunder.
(b) Except as may otherwise be agreed by Parent in writing and as
contemplated by those agreements or understandings set forth on Schedule II
hereto, the Stockholder shall not (i) transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of the Stockholder's Shares, or any interest therein
or (ii) enter into any contract, option or other agreement or understanding with
respect to any such transfer or any or all of the Stockholder's Shares, or any
interest therein.
6. ACQUISITION PROPOSALS. Stockholder agrees that such Stockholder,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement, (i) shall not, directly or indirectly,
solicit, encourage, initiate, participate in or otherwise facilitate or consent
to any negotiations, or consent to any negotiations, inquiries or discussions
with respect to any Acquisition Proposal and (ii) has terminated any discussions
or negotiations with, and the provision of information or data to, any Person
(other than Parent) respecting an Acquisition Proposal. Such Stockholder further
agrees that he shall not, directly or indirectly, provide any confidential
information or data to any Person (as defined in the Merger Agreement) relating
to or in contemplation of an Acquisition Proposal or engage in any negotiations
or discussions relating to or in contemplation of an Acquisition Proposal,
except in his capacity as an officer or director of the Company in a manner
permitted by the Merger Agreement. Such Stockholder will notify Parent
immediately if any inquiries, proposals or offers respecting an Acquisition
Proposal are received by, any such information or data is requested from, or any
such discussions or negotiations are sought to be initiated or continued with,
such Stockholder indicating, in connection with such notice, the name of such
Person and the material terms and conditions of any proposals or offers, and
shall keep Parent apprised with respect to the status and terms thereof.
7. AFFILIATES LETTER. Stockholder shall execute and deliver on a timely
basis an Affiliate Letter (as defined in the Merger Agreement).
3
8. RELIANCE BY PARENT. Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement.
9. SPECIFIC PERFORMANCE. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other parties if the
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other parties will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that any other party has adequate remedy at law. Each party
hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
10. HEIRS, SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and assigns and shall not be assignable without the written consent
of all other parties hereto other than any assignment in whole or in part by
Parent.
11. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written oral, among the parties hereto with respect to the subject matter hereof
and contains the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by all the parties hereto. No waiver of any provisions hereof by
any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
12. MISCELLANEOUS.
(a) EXPENSES. Each of the parties hereto shall bear and pay all costs
and expenses incurred by it or on its behalf in connection with the negotiation
of this Agreement, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) GOVERNING LAW. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the internal
laws of the State of Delaware without regard to principles of conflicts of law.
(d) SEVERABILITY. If any provision of this Agreement or the application
of such provision to any person or circumstances shall be held invalid by a
court of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than the
party as to which it is held invalid, shall not be affected.
4
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(f) TERMINATION. This Agreement shall terminate upon the earliest to
occur of (A) the Effective Time (as defined in the Merger Agreement), (B) six
months after the occurrence of a termination of the Merger Agreement in
accordance with Section 7.1 (d), (e) or (f) thereof, (C) a termination of the
Merger Agreement in accordance with Section 7.1 (a), (c) or (g) thereof and (D)
six months after the Outside Date as defined in Section 7.1 (b) of the Merger
Agreement and the Merger Agreement is not otherwise terminated.
(g) HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement and no construction or
reference shall be derived therefrom.
(h) NOTICES. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and shall be deemed given
if delivered personally, telecopied (which is confirmed), or sent by overnight
courier (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(i) if to Parent, to:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx, Esq.
Telecopy No.: (000) 000-0000
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(ii) if to the Stockholder, to such Stockholder c/o
Bessec Ventures IV LP
Bessemer Trust Company
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telecopy No.:
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(i) Stockholder shall cause certificates for the Shares and New Shares
to have typed or printed thereon a restrictive legend which shall read
substantially as follows (if and to the extent true and necessary in light of
legal and factual circumstances existing at such time):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN PROVISIONS AS SET FORTH IN THE VOTING AGREEMENT, DATED AS
OF DECEMBER 18, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF CONEXANT SYSTEMS, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES, WHICH CONTAINS RESTRICTIONS ON THE VOTING AND TRANSFER
THEREOF."
(j) CONSENT TO JURISDICTION, ETC. Each party hereto hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
Court of Chancery of the State of Delaware (unless such court asserts no
jurisdiction, in which case the parties hereto consent to the exclusive
jurisdiction of the courts of the State of Delaware) for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby (and each party hereto agrees not to commence any action,
suit or proceeding relating thereto except in such courts), and further agrees
that service of any process, summons, notice or document by U.S. registered mail
to the addresses set forth herein shall be effective service of process for any
such action, suit or proceeding brought against each party in such court. Each
party hereto hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby, in the Court of Chancery of the State
of Delaware (unless such court asserts no jurisdiction, in which case each party
consents to the exclusive jurisdiction of the courts of the State of Delaware).
Each party hereby further irrevocably and unconditionally waives and agrees not
to plead or to claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. Each of the
parties hereto also
6
agrees that any final and unappealable judgment against a party hereto in
connection with any action, suit or other proceeding that be conclusive and
binding on such party and that such award or judgment may be enforced in any
court of competent jurisdiction, either within or outside of the United States.
A certified or exemplified copy of such award or judgment shall be conclusive
evidence of the fact and amount of such award or judgment.
[Signature Pages Follow]
7
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
CONEXANT SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman & CEO
Confirmed and accepted as of the date first written above:
BESSEC VENTURES IV L.P.
By: /s/ Dear IV & Co. LLC
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager
EXHIBIT A
STOCKHOLDER
Number of Shares of
Name Company Common Stock Type of Ownership
---- -------------------- -----------------
Bessec Ventures IV L.P. 851,992 Beneficial
EXHIBIT B
FORM OF PROXY
The undersigned stockholder, for consideration received, hereby
appoints [PARENT DESIGNEES] and each of them as my proxies, with full power of
substitution in each of them, to cast on behalf of the undersigned all votes
entitled to be cast by the holder of the shares of Company Common Stock, par
value $0.01 per share, of Maker Communications, Inc., a Delaware corporation
(the "COMPANY"), owned by the undersigned at the Special Meeting of Stockholders
of the Company to be held for the consideration of the Merger under the
Agreement and Plan of Merger, dated as of December 18, 1999 (the "MERGER
AGREEMENT"), among Conexant Systems, Inc., a Delaware corporation ("Parent"),
the Company and Merlot Acquisition, Corp., a Delaware corporation ("MERGER
SUB"), and at any adjournment thereof or any other meeting for consideration of
any Acquisition Proposal (as defined in the Merger Agreement) or affecting the
Merger or any Acquisition Proposal, or to execute any written consent of
stockholders with respect to any of the foregoing (i) "FOR" approval and
adoption of the Merger Agreement, providing for the merger (the "MERGER") of
Merger Sub with and into the Company, and the Merger, (ii) "AGAINST" against any
proposal or offer with respect to a merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving, or any purchase of any substantial portion of
the assets of, or any equity securities of, or any transaction that would
involve the transfer or potential transfer of control of, the Company other than
the Merger and any proposed action or transaction that would prevent or
intentionally delay consummation of the Merger or is otherwise inconsistent
therewith and (iii) on other matters as directed by Section 2 of that certain
Voting Agreement, dated as of December 18, 1999, between a certain stockholder
of the Company, the undersigned, and Parent (the "VOTING AGREEMENT"). This proxy
is coupled with an interest and is irrevocable until such time as the Voting
Agreement terminates in accordance with its terms.
Dated __________________________, 1999
-------------------------------------
(Signature of Stockholder)
