EXHIBIT 99.5
FORM OF WESTERN MULTIPLEX VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
January 16, 2002 by and among Proxim, Inc., a Delaware corporation ("PROXIM"),
and the undersigned stockholder and/or option holder (the "STOCKHOLDER") of
Western Multiplex Corporation, a Delaware corporation ("WESTERN MULTIPLEX").
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 Class A common stock of Western
Multiplex (the "WESTERN MULTIPLEX COMMON STOCK") and (ii) shares of Western
Multiplex Common Stock issuable upon the exercise of outstanding options to
acquire such shares of Western Multiplex Common Stock, 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, Proxim 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
Proxim, the Stockholder (solely in his or her 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 Western Multiplex 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 Western Multiplex
(including all shares of Western Multiplex Common Stock and all options,
warrants and other rights to acquire shares of Western Multiplex 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 Western
Multiplex (including all additional shares of Western Multiplex Common Stock and
all additional options, warrants and other rights to acquire shares of Western
Multiplex 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 Western Multiplex, or the conversion of other
securities of Western Multiplex into such securities of Western Multiplex. 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.
(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
contravention of the obligations of the Stockholder under this Agreement with
respect to any of the Shares.
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(c) Limitation on Registration of Transfer. The Stockholder
agrees with, and covenants to, Proxim that the Stockholder shall not request
that Western Multiplex 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 Western Multiplex called, and at every
adjournment or postponement thereof, and on every action or approval by written
consent of the stockholders of Western Multiplex, the Stockholder (solely in his
or her capacity as such) shall cause the Shares to be voted in favor of approval
of the Share Issuance, in favor of each of the other 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 and the 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 Proxim,
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 Proxim, 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 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 Western Multiplex other than the shares
of Western Multiplex Common Stock and options and warrants to purchase shares of
Western Multiplex Common Stock 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 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.
6. No Solicitation. The Stockholder agrees (solely in his or her
capacity as such) that neither the Stockholder nor any of his or her
representatives (including any investment banker, attorney or accountant
retained by the Stockholder) shall, and that the Stockholder shall use his or
her reasonable best efforts to cause his or her 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
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Western Multiplex, (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 Western Multiplex, (iii) engage in
discussions with any Person with respect to any Acquisition Proposal with
respect to Western Multiplex, 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 Western
Multiplex (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 Western Multiplex. The Stockholder and his or her
representatives (including any investment banker, attorney or accountant
retained by the Stockholder) shall, and shall use his or her reasonable best
efforts to cause his or her 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
Western Multiplex. 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 or her capacity as either an officer or director of Western
Multiplex 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 or
her capacity as such) that neither the Stockholder nor any of his or her
representatives (including any investment banker, attorney or accountant
retained by him or her) shall, and that the Stockholder shall use his or her
reasonable best efforts to cause his or her 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 Western Multiplex against the approval of
the Share Issuance or any of the other actions 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 Proxim, 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.
10. Termination. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
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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 Proxim.
(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 Proxim and to preserve for Proxim 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 Proxim which cannot be adequately compensated by
a monetary award. Accordingly, Proxim and the Stockholder hereby expressly agree
that in addition to all other remedies available at law or in equity, Proxim
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.
(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
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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 Proxim:
Proxim, Inc.
000 XxXxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
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
(ii) If to the Stockholder: To the address for notice
set forth on the signature page hereof.
with a copy to:
Western Multiplex Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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Attention: Xxxx Xxxxxxxxx
Fax: (000) 000-0000
and
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 0000
Los Angeles, California 91608
Attention: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
(h) Enforcement; Consent to Jurisdiction; Waiver of Jury Trial.
(i) Each of the parties hereto:
(1) 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;
(2) 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;
(3) 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;
(4) 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 12(g) or at such other address of
which a party shall have been notified pursuant thereto; and
(5) 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
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.
PROXIM, INC. STOCKHOLDER
By: By:
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Signature
Name: Name:
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Title: Title:
------------------------------ -----------------------------------
Print Address:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Telephone Number
-----------------------------------------
Facsimile Number
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Shares Beneficially Owned:
____ shares of Western Multiplex Common
Stock
____ shares of Western Multiplex Common
Stock issuable upon exercise of
outstanding options or warrants
[SIGNATURE PAGE TO WESTERN MULTIPLEX VOTING AGREEMENT]
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Western Multiplex Corporation, a Delaware
corporation ("WESTERN MULTIPLEX"), hereby irrevocably (to the fullest extent
permitted by law) appoints Xxxxx X. Xxxx and Xxxxx X. Xxxxxx, officers of
Proxim, Inc., a Delaware corporation ("PROXIM"), 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 Western Multiplex 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 Western Multiplex 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 Western Multiplex Voting Agreement of even date herewith by and among
Proxim and the undersigned stockholder (the "WESTERN MULTIPLEX VOTING
AGREEMENT"), and is granted in consideration of Proxim 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 Western Multiplex and in every written consent in lieu of such meeting in
favor of the issuance of shares of Western Multiplex common stock to the
stockholders of Proxim pursuant to the terms of the Reorganization Agreement (as
the same may be amended from time to time), in favor of each of the other
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]
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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: , 2002
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Signature:
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Name:
-----------------------------------
Name and Title of
Authorized Signatory:
--------------------
Shares Beneficially Owned:
--------------
____ shares of Western Multiplex
Common Stock
____ shares of Western Multiplex Common
Stock issuable upon exercise of
outstanding options or warrants
[IRREVOCABLE PROXY]
