EXHIBIT 10.32
PROXIM VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
January 16, 2002 by and among Western Multiplex Corporation, a Delaware
corporation ("WESTERN MULTIPLEX"), and Xxxxx X. Xxxx (the "STOCKHOLDER"), a
stockholder and/or option holder of Proxim, Inc., a Delaware corporation
("PROXIM").
RECITALS
A. Western Multiplex, Walnut-Pine Merger Corp. ("MERGER SUB"), a
Delaware corporation and wholly owned direct subsidiary of Western Multiplex,
and Proxim have entered into an Agreement and Plan of Reorganization (the
"REORGANIZATION AGREEMENT"), which provides for the merger (the "MERGER") of
Merger Sub with and into Proxim. Pursuant to the Merger, all outstanding common
stock of Proxim will be canceled and extinguished and converted into the right
to receive common stock of Western Multiplex, as set forth in the Reorganization
Agreement, and Proxim will become a wholly owned direct subsidiary of Western
Multiplex.
B. The Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of
such number of (i) shares of the outstanding common stock of Proxim and (ii)
shares of common stock of Proxim issuable upon the exercise of outstanding
options to acquire such shares of common stock of Proxim, in each case as is set
forth on the signature page of this Agreement.
C. As an inducement and condition to entering into the Reorganization
Agreement, Western Multiplex has required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement.
D. In consideration of the execution of the Reorganization Agreement by
Western Multiplex, the Stockholder (solely in his capacity as such) is hereby
agreeing to vote, or cause to be voted, the Shares (as defined below) and other
such shares of capital stock of Proxim over which the Stockholder has voting
power so as to facilitate the consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto hereby
agree as follows:
1. Certain Definitions. Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to them in the Reorganization
Agreement. For purposes of this Agreement, the following terms shall have the
following respective meanings:
(a) "EXPIRATION DATE" shall mean the earlier to occur of (i) such
date and time as the Reorganization Agreement shall have been validly terminated
pursuant to Article VII thereof, or (ii) such date and time as the Merger shall
become effective in accordance with the terms and conditions of the
Reorganization Agreement.
(b) "PERSON" shall mean any individual, any corporation, limited
liability company, general or limited partnership, business trust,
unincorporated association or other business organization or entity, or any
governmental body or authority.
(c) "SHARES" shall mean: (i) all securities of Proxim (including
all shares of Proxim Common Stock and all options, warrants and other rights to
acquire shares of Proxim Common Stock) owned by the Stockholder as of the date
of this Agreement, as indicated on the signature page of this Agreement; and
(ii) all additional securities of Proxim (including all additional shares of
Proxim Common Stock and all additional options, warrants and other rights to
acquire shares of Proxim Common Stock) of which the Stockholder acquires
ownership during the period from the date of this Agreement through the
Expiration Date, including, without limitation, through the exercise of options,
warrants or other rights to acquire such securities of Proxim, or the conversion
of other securities of Proxim into such securities of Proxim; provided, however,
that the securities subject to that certain pledge agreement by and between the
Stockholder and Bear Xxxxxxx & Co. (the "MARGIN AGREEMENT") as of the date
hereof that are sold pursuant to the terms of such Margin Agreement, as such
terms exist as of the date hereof, shall not be deemed to be "Shares" for the
purposes of this Agreement. In the event of a stock dividend or distribution, or
any change in the Shares by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
(d) Transfer. A Person shall be deemed to have effected a
"TRANSFER" of a security if such Person directly or indirectly: (i) sells,
offers to sell, makes any short sales of, pledges, encumbers, lends,
hypothecates, enters into any type of equity swap or hedging of, grants an
option with respect to, transfers or disposes of such security, any interest
therein, or the economic consequences of ownership of such security or (ii)
enters into an agreement, contract or commitment providing for the sale of,
making any short sales of, pledge of, lending of, encumbrance of, equity swap or
hedging of, grant of an option with respect to, transfer of or disposition of
such security, any interest therein or the economic consequences of ownership of
such security, other than any such actions pursuant to which such Person
maintains all voting rights with respect to such security.
2. Transfer of Shares.
(a) Transferee of Shares to be Bound by this Agreement. The
Stockholder hereby agrees that, at all times during the period commencing with
the execution and delivery of this Agreement until the Expiration Date, the
Stockholder shall not cause or permit any Transfer of any of the Shares (or any
securities convertible into or exercisable or exchangeable for Shares), or any
interest in the foregoing, to be effected unless such Shares as are pledged
under the Margin Agreement as of the date hereof and are sold pursuant to the
terms of such Margin Agreement, as such terms exist of the date hereof.
(b) Transfer of Voting Rights. The Stockholder hereby agrees
that, at all times during the period commencing with the execution and delivery
of this Agreement through the Expiration Date, the Stockholder shall not deposit
(or permit the deposit of) any Shares in a voting trust or grant any proxy, or
enter into any voting agreement or similar agreement or arrangement in
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contravention of the obligations of the Stockholder under this Agreement with
respect to any of the Shares.
(c) Limitation on Registration of Transfer. The Stockholder
agrees with, and covenants to, Western Multiplex that the Stockholder shall not
request that Proxim register the Transfer of any certificate or uncertificated
interest representing any of the Shares, unless such Transfer is made in
compliance with this Agreement.
3. Agreement to Vote Shares.
(a) Agreement to Vote. Until the Expiration Date, at every
meeting of the stockholders of Proxim called, and at every adjournment or
postponement thereof, and on every action or approval by written consent of the
stockholders of Proxim, the Stockholder (solely in his, her or its capacity as
such) shall cause the Shares to be voted in favor of the adoption of the
Reorganization Agreement (as the same may be amended from time to time), in
favor of each of the transactions contemplated by the Reorganization Agreement
(as the same may be amended from time to time) and against any matter that is
inconsistent with the prompt consummation of the Merger and other transactions
contemplated by the Reorganization Agreement (as the same may be amended from
time to time).
(b) No Other Agreement. Prior to the Expiration Date, the
Stockholder shall not enter into any agreement or understanding with any Person
to vote or give instructions in any manner inconsistent with the terms of this
Section 3.
4. Irrevocable Proxy. As security for the agreements of the Stockholder
provided for herein, the Stockholder hereby grants and delivers to Western
Multiplex, concurrently with the execution and delivery of this Agreement, a
proxy in the form attached hereto as Exhibit A (the "PROXY"), which shall be
irrevocable to the fullest extent permitted by applicable law, with respect to
the Shares of which Stockholder is or becomes the record owner.
5. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Western Multiplex, as of the date hereof and
at all times until the Expiration Date (unless indicated otherwise), that the
Stockholder (a) is the beneficial owner of, and has good and valid title to, the
Shares, free and clear of any liens, claims, options, rights of first refusal,
co-sale rights, charges or other encumbrances, other than such Shares as are
subject to the Margin Agreement as of the date hereof, (b) as of the date
hereof, does not beneficially own or have any written or unwritten agreement or
arrangement to acquire any securities of Proxim other than the shares of Proxim
Common Stock and options and warrants to purchase shares of Common Stock of
Proxim indicated on the signature page of this Agreement and (c) has sole voting
power, sole power of disposition, sole power to issue instructions with respect
to the matters set forth in Sections 2 and 3 hereof, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Shares, with no limitations,
qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement.
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6. No Solicitation. The Stockholder agrees (solely in his capacity as
such) that neither he nor any of his representatives (including any investment
banker, attorney or accountant retained by him) of him shall, and that he shall
use his reasonable best efforts to cause his employees and other agents not to
(and shall not authorize any of them to) directly or indirectly, (i) solicit,
initiate, encourage, knowingly facilitate or induce any inquiry with respect to,
or the making, submission or announcement of, any Acquisition Proposal with
respect to Proxim, (ii) participate in any discussions or negotiations
regarding, or furnish to any Person any nonpublic information with respect to,
or take any other action to facilitate any inquiries or the making of any
proposal that constitutes or may reasonably be expected to lead to, any
Acquisition Proposal with respect to Proxim, (iii) engage in discussions with
any Person with respect to any Acquisition Proposal with respect to Proxim,
except as to the existence of the terms contained in this Section 6 and Section
5.3(a) of the Reorganization Agreement, (iv) approve, endorse or recommend any
Acquisition Proposal with respect to Proxim (except to the extent specifically
permitted pursuant to Section 5.3(d) of the Reorganization Agreement) or (v)
enter into any letter of intent or similar document or any contract, agreement
or commitment contemplating or otherwise relating to any Acquisition Proposal or
transaction contemplated thereby with respect to Proxim. The Stockholder and his
representatives (including any investment banker, attorney or accountant
retained by him) shall, and shall use his reasonable best efforts to cause his
employees and other agents to, immediately cease any and all existing
activities, discussions or negotiations with any third parties conducted
heretofore with respect to any Acquisition Proposal with respect to Proxim.
Without limiting the foregoing, it is understood that any violation of the
restrictions set forth in this Section 6 by any investment banker, attorney or
other advisor or representative of the Stockholder shall be deemed to be a
breach of this Section 6 by the Stockholder. Notwithstanding anything to the
contrary stated herein, this Section 6 shall not apply to the Stockholder in his
capacity as either an officer or director of Proxim and any actions undertaken
or omissions by the Stockholder in any such capacity shall be governed
exclusively by Section 5.3 of the Reorganization Agreement.
7. No Solicitation of Proxies. The Stockholder agrees (solely in his
capacity as such) that neither he nor any of his representatives (including any
investment banker, attorney or accountant retained by him) shall, and that he
shall use his reasonable best efforts to cause his employees and other agents
not to (and shall not authorize any of them to) directly or indirectly, engage
in any solicitation (as defined in Regulation 14A of the Rules and Regulations
of the Exchange Act) of other stockholders of Proxim against the Reorganization
Agreement (as the same may be amended from time to time) and the Merger or any
of the other transactions contemplated by the Reorganization Agreement (as the
same may be amended from time to time).
8. Further Assurances. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or appropriate to consummate the transactions contemplated by this Agreement.
9. Legending of Shares. If so requested by Western Multiplex, the
Stockholder hereby agrees that the Shares shall bear a legend stating that they
are subject to this Agreement and, to the extent applicable, to an irrevocable
proxy. Subject to the terms of Section 2 hereof, the Stockholder hereby agrees
that the Stockholder shall not Transfer the Shares without first having the
aforementioned legend affixed to the certificates representing the Shares.
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10. Termination. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
11. Miscellaneous.
(a) Waiver. No waiver by any party hereto of any condition or any
breach of any term or provision set forth in this Agreement shall be effective
unless in writing and signed by each party hereto. The waiver of a condition or
any breach of any term or provision of this Agreement shall not operate as or be
construed to be a waiver of any other previous or subsequent breach of any term
or provision of this Agreement.
(b) Severability. In the event that any term, provision, covenant
or restriction set forth in this Agreement, or the application of any such term,
provision, covenant or restriction to any person, entity or set of
circumstances, shall be determined by a court of competent jurisdiction to be
invalid, unlawful, void or unenforceable to any extent, the remainder of the
terms, provisions, covenants and restrictions set forth in this Agreement, and
the application of such terms, provisions, covenants and restrictions to
persons, entities or circumstances other than those as to which it is determined
to be invalid, unlawful, void or unenforceable, shall remain in full force and
effect, shall not be impaired, invalidated or otherwise affected and shall
continue to be valid and enforceable to the fullest extent permitted by
applicable law.
(c) Binding Effect; Assignment. This Agreement and all of the
terms and provisions hereof shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the Stockholder may be assigned to
any other Person without the prior written consent of Western Multiplex.
(d) Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by each of the parties hereto.
(e) Specific Performance; Injunctive Relief. Each of the parties
hereto hereby acknowledges that (i) the representations, warranties, covenants
and restrictions set forth in this Agreement are necessary, fundamental and
required for the protection of Western Multiplex and to preserve for Western
Multiplex the benefits of the Merger; (ii) such covenants relate to matters
which are of a special, unique, and extraordinary character that gives each such
representation, warranty, covenant and restriction a special, unique, and
extraordinary value; and (iii) a breach of any such representation, warranty,
covenant or restriction, or any other term or provision of this Agreement, will
result in irreparable harm and damages to Western Multiplex which cannot be
adequately compensated by a monetary award. Accordingly, Western Multiplex and
the Stockholder hereby expressly agree that in addition to all other remedies
available at law or in equity, Western Multiplex shall be entitled to the
immediate remedy of specific performance, a temporary and/or permanent
restraining order, preliminary injunction, or such other form of injunctive or
equitable relief as may be used by any court of competent jurisdiction to
restrain or enjoin any of the parties hereto from breaching any representations,
warranties, covenants or restrictions set forth in this Agreement, or to
specifically enforce the terms and provisions hereof.
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(f) Governing Law. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the internal laws of the
State of Delaware without giving effect to any choice or conflict of law
provision, rule or principle (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware.
(g) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed duly given (i) on the date of delivery if
delivered personally, (ii) on the date of confirmation of receipt (or, the first
business day following such receipt if the date is not a business day) of
transmission by telecopy or telefacsimile or (iii) on the date of confirmation
of receipt (or, the first business day following such receipt if the date is not
a business day) if delivered by a nationally recognized courier service. All
notices hereunder shall be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:
(i) If to Western Multiplex:
Western Multiplex Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 0000
Los Angeles, California 91608
Attention: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
(ii) If to the Stockholder: To the address for notice
set forth on the signature page hereof.
with a copy to:
Proxim, Inc.
000 XxXxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Fax: (000) 000-0000
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
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Attention: Xxxxxx X. Day
Fax: (000) 000-0000
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation
Xxx Xxxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000
(h) Enforcement; Consent to Jurisdiction; Waiver of Jury Trial.
(i) Each of the parties hereto:
(A) consents to submit itself to the personal
jurisdiction of (x) the United States District Court for the District of
Delaware in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement to the extent such court would have
subject matter jurisdiction with respect to such dispute and (y) the Chancery or
other Courts of the State of Delaware;
(B) agrees that it will not attempt to deny or
defeat such personal jurisdiction or venue by motion or other request for leave
from any such court;
(C) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than such courts;
(D) agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
a party at its address set forth in Section 11(g) or at such other address of
which a party shall have been notified pursuant thereto; and
(E) agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction.
(ii) EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING IN RELATION TO THIS
AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
(iii) All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
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(i) Entire Agreement. This Agreement, the Proxy, the Affiliate
Agreement between the Stockholder and Western Multiplex dated the date hereof,
the Reorganization Agreement and any other agreements referred to in the
Reorganization Agreement contain the entire understanding of the parties in
respect of the subject matter hereof, and supersede all prior negotiations and
understandings between the parties with respect to such subject matter.
(j) Headings. The section headings set forth in this Agreement
are for convenience of reference only and shall not affect the construction or
interpretation of this Agreement in any manner.
(k) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
WESTERN MULTIPLEX CORPORATION STOCKHOLDER
By: /s/ Xxxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxx
------------------------------ ---------------------------------
Signature of Authorized Signatory Signature
Name: Xxxxxxxx Xxxxx Name: Xxxxx X. Xxxx
------------------------------ ---------------------------------
Title: Chairman & Chief Executive Title: Chairman, President & Chief
Officer Executive Officer
---------------------------- -------------------------------
Print Address
000 XxXxxxxx Xxxxx
-------------------------------------
Xxxxxxxxx, XX 00000
-------------------------------------
(000) 000-0000
-------------------------------------
Telephone Number
(000) 000-0000
-------------------------------------
Facsimile Number
Shares Beneficially Owned:
316,123 shares of Proxim Common Stock
-------
256,983 shares of Proxim Common Stock
------- issuable upon exercise of
outstanding options or
warrants
[SIGNATURE PAGE TO PROXIM VOTING AGREEMENT]
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Proxim, Inc., a Delaware corporation
("PROXIM"), hereby irrevocably (to the fullest extent permitted by law) appoints
Xxxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx, members of the Board of Directors of
Western Multiplex Corporation, a Delaware corporation ("WESTERN MULTIPLEX"), and
each of them, as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and related rights (to the full extent that the undersigned
is entitled to do so) with respect to all of the shares of capital stock of
Proxim that now are or hereafter may be owned of record by the undersigned
(collectively, the "SHARES") in accordance with the terms of this Proxy. The
Shares owned of record by the undersigned stockholder of Proxim as of the date
of this Proxy are listed on the final page of this Proxy. Upon the undersigned's
execution of this Irrevocable Proxy, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to the Shares until
after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the fullest extent permitted
by applicable law), is coupled with an interest and is granted pursuant to that
certain Proxim Voting Agreement of even date herewith by and among Western
Multiplex and the undersigned stockholder (the "PROXIM VOTING AGREEMENT"), and
is granted in consideration of Western Multiplex entering into that certain
Agreement and Plan of Reorganization (the "REORGANIZATION AGREEMENT") by and
among Western Multiplex, Walnut-Pine Merger Corp., a Delaware corporation and a
wholly owned direct subsidiary of Western Multiplex ("MERGER SUB"), and Proxim.
The Reorganization Agreement provides for the merger of Merger Sub with and into
Proxim in accordance with its terms (the "MERGER"). As used herein, the term
"EXPIRATION DATE" shall mean the earlier to occur of (i) such date and time as
the Reorganization Agreement shall have been validly terminated pursuant to
Article VII thereof or (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Reorganization
Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of stockholders
of Proxim and in every written consent in lieu of such meeting in favor of the
adoption of the Reorganization Agreement (as the same may be amended from time
to time), in favor of each of the actions contemplated by the Reorganization
Agreement (as the same may be amended from time to time) and against any matter
that is inconsistent with the prompt consummation of the Merger or other
transactions contemplated by the Reorganization Agreement (as the same may be
amended from time to time).
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided above. The undersigned stockholder
may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
[Remainder of Page Intentionally Left Blank]
This Irrevocable Proxy is irrevocable (to the fullest extent permitted
by law). This Irrevocable Proxy shall terminate, and be of no further force and
effect, automatically upon the Expiration Date.
Dated: January 16, 2002
Signature of Stockholder: /s/ Xxxxx X. Xxxx
----------------------
Name of Stockholder: Xxxxx X. Xxxx
---------------------------
Name and Title of
Authorized Signatory: Xxxxx X. Xxxx, Chairman,
--------------------------
President & Chief
--------------------------
Executive Officer
--------------------------
Shares beneficially owned:
316,123 shares of Proxim Common Stock
-------
256,983 shares of Proxim Common Stock issuable
------- upon exercise of outstanding options or
warrants
[IRREVOCABLE PROXY]
