EXHIBIT 99.5
NETOPIA, INC.
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
---------
January 23, 2001 by and between Netopia, Inc., a Delaware corporation
("Company"), and the undersigned stockholder and/or option holder (the
-------
"Stockholder") of Proxim, Inc., a Delaware corporation (the "Parent").
----------- ------
RECITALS:
A. Parent, the Company and Merger Sub (as defined below) have entered
into an Agreement and Plan of Merger and Reorganization (the "Reorganization
--------------
Agreement"), which provides for the merger (the "Merger") of a wholly-owned
--------- ------
subsidiary of Parent ("Merger Sub") with and into the Company, pursuant to which
----------
all outstanding capital stock of the Company will be converted into the right to
receive common stock of Parent, as set forth in the Reorganization Agreement.
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 shares of the outstanding capital stock of the Parent, and such
number of shares of capital stock of the Parent issuable upon the exercise of
outstanding options and warrants, as is indicated on the signature page of this
Agreement.
C. In consideration of the execution of the Reorganization Agreement by
Company, the Stockholder (in his or her capacity as such) has agreed to vote the
Shares (as defined below) and such other shares of capital stock of the Parent
over which the Stockholder has voting power, so as to facilitate consummation of
the Merger.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. Certain Definitions. Capitalized terms used but not defined herein
-------------------
shall have the respective meanings ascribed thereto in the Reorganization
Agreement. For all purposes of and under 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 its terms, or (ii) such date and time as the Merger shall become
effective in accordance with the terms and conditions set forth in 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 authority.
(c) "Shares" shall mean: (i) all securities of the Parent (including all
------
shares of Parent Common Stock and all options, warrants and other rights to
acquire shares of Parent Common Stock) owned by the Stockholder as of the date
of this Agreement, and (ii) all additional securities of the Parent (including
all additional shares of Parent Common Stock and all additional options,
warrants and other rights to acquire shares of Parent Common Stock) of which the
Stockholder acquires beneficial ownership during the period commencing with the
execution and delivery of this Agreement until the Expiration Date.
(d) Transfer. A Person shall be deemed to have effected a "Transfer" of a
-------- --------
security if such person directly or indirectly (i) sells, pledges, encumbers,
grants an option with respect to, transfers or otherwise disposes of such
security or any interest therein, or (ii) enters into an agreement or commitment
providing for the sale of, pledge of, encumbrance of, grant of an option with
respect to, transfer of or disposition of such security or any interest therein.
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 to be
effected, or discuss, negotiate or make any offer regarding any Transfer of any
of the Shares, unless each Person to which any such Shares, or any interest
therein, is or may be Transferred shall have (i) executed a counterpart of this
Agreement and a proxy in the form attached hereto as Exhibit A (with such
---------
modifications as Company may reasonably request), and (ii) agreed in writing to
hold such Shares, or such interest therein, subject to all of the terms and
conditions set forth in this Agreement.
(b) Transfer of Voting Rights. The Stockholder hereby agrees that,
-------------------------
at all times commencing with the execution and delivery of this Agreement until
the Expiration Date, the Stockholder shall not deposit, or permit the deposit
of, any Shares in a voting trust, grant any proxy in respect of the Shares, or
enter into any voting agreement or similar arrangement or commitment in
contravention of the obligations of the Stockholder under this Agreement with
respect to any of the Shares.
3. Agreement to Vote Shares. Until the Expiration Date, at every meeting
------------------------
of stockholders of the Parent called with respect to any of the following, and
at every adjournment or postponement thereof, and on every action or approval by
written consent of stockholders of the Parent with respect to any of the
following, the Stockholder shall vote, to the extent not voted by the person(s)
appointed under the Proxy (as defined in Section 4 hereof), the Shares:
---------
(a) in favor of approval of the issuance of shares of Parent Common
Stock to be issued in the Merger (the "Parent Stock Issuance") and in favor of
---------------------
each of the other actions contemplated by the Reorganization Agreement and the
Proxy and any action required in furtherance thereof;
-2-
(b) against approval of any proposal made in opposition to, or in
competition with, the Parent Stock Issuance and the transactions contemplated by
the Reorganization Agreement; and
(c) against any other action that is intended, or could reasonably be
expected to, impede, interfere with, delay, postpone, discourage or adversely
affect the Parent Stock Issuance or any of the other transactions contemplated
by the Reorganization 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. Concurrently with the execution of this Agreement,
-----------------
the Stockholder agrees to deliver to Company a proxy in the form attached hereto
as Exhibit A (the "Proxy"), which shall be irrevocable to the fullest extent
--------- -----
permissible by applicable law, with respect to the Shares.
5. Representations and Warranties of the Stockholder. The Stockholder
-------------------------------------------------
hereby represents and warrants to Company that, as of the date hereof and at all
times until the Expiration Date, the Stockholder (i) is (and will be, unless
Transferred pursuant to Section 2(a) hereof) the beneficial owner of the shares
------------
of Parent Common Stock, and the options, warrants and other rights to purchase
shares of Parent Common Stock, set forth on signature page of this Agreement,
with full power to vote or direct the voting of the Shares for and on behalf of
all beneficial owners of the Shares; (ii) the Shares are (and will be, unless
Transferred pursuant to Section 2(a) hereof) free and clear of any liens,
------------
pledges, security interests, claims, options, rights of first refusal, co-sale
rights, charges or other encumbrances of any kind or nature; (iii) does not (and
will not) beneficially own any securities of the Parent other than the shares of
Parent Common Stock, and options, warrants and other rights to purchase shares
of Parent Common Stock, set forth on the signature page of this Agreement; and
(iv) has (and will have, unless Transferred pursuant to Section 2(a) hereof)
------------
full power and authority to make, enter into and carry out the terms of this
Agreement and the Proxy.
6. Legending of Shares. If so requested by Company, the Stockholder
-------------------
hereby agrees that the Shares shall bear a legend stating that they are subject
to this Agreement and 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.
7. Termination. This Agreement shall terminate and be of no further
----------
force or effect as of the Expiration Date.
8. 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
-3-
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 Company.
(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 acknowledge that (i) the representations, warranties, covenants
and restrictions set forth in this Agreement are necessary, fundamental and
required for the protection of Company and to preserve for Company 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 Company which cannot be adequately compensated
by a monetary award. Accordingly, Company and the Stockholder hereby expressly
agree that in addition to all other remedies available at law or in equity,
Company 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 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.
-4-
(g) Entire Agreement. This Agreement and the Proxy and the other
----------------
agreements referred to in this Agreement set forth the entire agreement and
understanding of Company and the Stockholder with respect to the subject matter
hereof and thereof, and supersede all prior discussions, agreements and
understandings between Company and the Stockholder, both oral and written, with
respect to the subject matter hereof and thereof.
(h) Notices. All notices and other communications pursuant to this
-------
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
respective parties at the following address (or at such other address for a
party as shall be specified by like notice):
If to Company: Netopia, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx &
Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Stockholder: To the address for notice set forth on the
signature page hereof.
with a copy to: Proxim, Inc.
000 XxXxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-5-
and to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Day
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(i) Further Assurances. The Stockholder (in his or her capacity as
------------------
such) shall execute and deliver any additional certificate, instruments and
other documents, and take any additional actions, as Company may deem necessary
or desirable, in the reasonable opinion of Company, to carry out and effectuate
the purpose and intent of this Agreement.
(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]
-6-
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed as of the date first written above.
NETOPIA, INC. STOCKHOLDER:
By:_________________________________ By:____________________________________
Signature of Authorized Signatory Signature
Name:_______________________________ Name:_________________________________
Title:______________________________ Title:________________________________
______________________________________
______________________________________
Print Address
______________________________________
Telephone
______________________________________
Facsimile No.
Shares beneficially owned:
______ shares of the Parent Common Stock
______ shares of the Parent Common
Stock issuable upon the exercise of
outstanding options, warrants or other
rights
SIGNATURE PAGE TO VOTING AGREEMENT
EXHIBIT A
---------
IRREVOCABLE PROXY
The undersigned stockholder of Proxim, Inc., a Delaware corporation (the
"Parent"), hereby irrevocably (to the fullest extent permitted by law) appoints
-------
the directors on the Board of Directors of Netopia, Inc., a Delaware corporation
("Company"), 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 the Parent that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of the Parent issued or
issuable in respect thereof on or after the date hereof (collectively, the
"Shares") in accordance with the terms of this Proxy. The Shares beneficially
------
owned by the undersigned stockholder of the Parent as of the date of this Proxy
are listed on the final page of this Proxy. Upon the execution of this Proxy by
the undersigned, any and all prior proxies given by the undersigned with respect
to any Shares are hereby revoked and the undersigned hereby agrees not to grant
any subsequent proxies with respect to the Shares until after the Expiration
Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and between Company and the undersigned
stockholder (the "Voting Agreement"), and is granted in consideration of Company
----------------
entering into that certain Agreement and Plan of Merger and Reorganization (the
"Reorganization Agreement"), by and among Parent, ALK Acquisition Corp., a
------------------------
Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), and
----------
the Company, which provides for the merger of Merger Sub with and into the
Company 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 its
terms, or (ii) such date and time as the Merger shall become effective in
accordance with the terms and conditions set forth in 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, adjourned or postponed meeting of
stockholders of the Parent and in every written consent in lieu of such meeting:
(i) in favor of approval of the issuance of shares of Parent Common
Stock to be issued in the Merger (the "Parent Stock Issuance") add in favor of
---------------------
each of the other actions contemplated by the Reorganization Agreement and the
Proxy and any action required in furtherance thereof;
(ii) against approval of any proposal made in opposition to, or in
competition with, the Parent Stock Issuance and the transactions contemplated by
the Reorganization Agreement;
(iii) against any other action that is intended, or could reasonably
be expected to, impede, interfere with, delay, postpone, discourage or adversely
affect the Parent Stock Issuance or any of the other transactions contemplated
by the Reorganization Agreement.
The attorneys and proxies named above may not exercise this 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.
This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
[Remainder of Page Intentionally Left Blank]
-9-
Dated: January 23, 2001
Signature of Stockholder: ________________________
Print Name of Stockholder:________________________
Shares beneficially owned:
_______ shares of the Parent Common Stock
_______ shares of the Parent Common Stock
issuable upon the exercise of outstanding
options, warrants or other rights
[SIGNATURE PAGE TO IRREVICABLE PROXY]
