Exhibit 1
PROXIM VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
June 16, 2002 by and among Proxim Corporation (formerly known as Western
Multiplex Corporation), a Delaware corporation (the "Company"), Ripplewood
Partners, L.P. and Ripplewood Co-Investment Fund I, L.L.C., each a Stockholder
(collectively, the "Stockholders") of the Company.
RECITALS
A. The Company, Warburg Pincus Private Equity VIII, L.P. ("Warburg"),
Broadview Capital Partners L.P. and Broadview Capital Partners Qualified
Purchasers Fund L.P. (collectively, "Broadview") have entered into a
Securities Purchase Agreement, dated as of the date hereof (the "Purchase
Agreement"), which provides for (i) the purchase (the "Share Purchase") by
Warburg and Broadview of 1,640,000 Series A Convertible Preferred Shares, par
value $.01 per share, of the Company ("Company Preferred Stock"), (ii) the
issuance of warrants (the "Equity Warrant Issuance") to Warburg and Broadview
to purchase 6,708,335 shares Common Stock, par value $.01 per share, of the
Company ("Company Common Stock"), (iii) the issuance by the Company (the "Note
Issuance") of Convertible Notes (the "Convertible Notes") in favor of Warburg
and Broadview in the aggregate principal amount of $34,000,000 and (iv) the
issuance of warrants to purchase 5,563,010 shares of Company Common Stock upon
conversion of the Convertible Note pursuant to its terms (the "Debt Warrant
Issuance" and together with the Share Purchase, the Equity Warrant Issuance
and the Note Issuance, the "Financing").
B. The Stockholders are the beneficial owners (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 Class A common stock of the Company
(the "Company Common Stock") as is set forth on the signature page of this
Agreement.
C. As an inducement and condition to entering into the Purchase
Agreement, Warburg and Broadview have required that the Stockholders agree,
and the Stockholders have agreed, to enter into this Agreement.
D. In consideration of, among other matters, the execution and delivery
of (i) the Purchase Agreement by Warburg and Broadview, (ii) an
Indemnification Agreement, dated as of the date hereof, between the Company
and the Stockholders (the "Indemnification Agreement") and (ii) termination of
Section 2 of the Existing Stockholders Agreement pursuant to Section 6 hereof
(the "Stockholders Agreement Amendment"), each of the Stockholders (solely in
its 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 the
Company over which such Stockholder has voting power so as to facilitate the
transactions contemplated by the Purchase Agreement.
E. The Company has provided the Stockholders with a summary of the
material terms of the Financing and related acquisition by the Company (the
"Term Sheet").
NOW, THEREFORE, intending to be legally bound, the parties hereto hereby
agree as follows:
1. Certain Definitions. For purposes of this Agreement, the following
terms shall have the following respective meanings:
(a) "Co-Investment Agreement" shall mean the Co-Investment
Agreement, dated as of October 31, 1999, among Ripplewood Partners, L.P., WMC
Holding Corp., The Xxxxxxx and Xxxxxxx Xxxxxxx Revocable Trust, Xxxxxxx
Xxxxxxx and the Company.
(b) "Existing Stockholders Agreement" shall mean the Stockholders'
Agreement, dated as of January 16, 2002, between the Stockholders and the
Company.
(c) "Expiration Date" shall mean the earlier to occur of (i) such
date and time as the Purchase Agreement shall have been validly terminated
pursuant thereto, (ii) such date and time that the Stockholders' Meeting is
concluded, or (iii) March 26, 2003.
(d) "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.
(e) "Record Date" shall mean the record date, established pursuant
to the Company's bylaws, relating to the Stockholders Meeting.
(f) "Shares" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) owned by the
Stockholders as of the date of this Agreement, as indicated on the signature
page of this Agreement; and (ii) all additional securities of the Company
(including all additional shares of Company Common Stock and all additional
options, warrants and other rights to acquire shares of Company Common Stock)
of which the Stockholders acquire ownership during the period from the date of
this Agreement through the Record Date, including, without limitation, through
the exercise of options, warrants or other rights to acquire such securities
of the Company, or the conversion of other securities of the Company into such
securities of the Company. 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.
(g) "Stockholders' Meeting" shall mean the meeting of Stockholders
of the Company to approve the Financing and the transactions contemplated
thereby.
(h) 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
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the economic consequences of ownership of such security, other than any such
actions pursuant to which such Person maintains through the Record Date all
voting rights with respect to such security.
2. Transfer of Shares.
(a) Transferee of Shares to be Bound by this Agreement. Except as
permitted under the Existing Shareholders Agreement, the Stockholders hereby
agree that, at all times during the period commencing with the execution and
delivery of this Agreement until the Record Date, the Stockholders 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. Except as permitted under the
Existing Shareholders Agreement, the Stockholders hereby agree that, at all
times during the period commencing with the execution and delivery of this
Agreement through the Record Date, the Stockholders 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 Stockholders under this Agreement with
respect to any of the Shares.
(c) Limitation on Registration of Transfer. The Stockholders agree
with, and covenants to, Warburg and Broadview that the Stockholders shall not
request that the Company 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 the
Stockholders' Meeting, the Stockholders (solely in its capacity as such) shall
cause the Shares to be voted in favor of approval of the Financing and the
transactions expressly contemplated thereby on substantially the terms set
forth in the Term Sheet and against any matter that is inconsistent with the
prompt consummation of the Financing and the transactions expressly
contemplated thereby.
(b) No Other Agreement. Prior to the Expiration Date, the
Stockholders 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. Representations and Warranties of the Stockholders. The Stockholders
hereby represent and warrant, severally, but not jointly, to the Company, as
of the date hereof and at all times until the Expiration Date (unless
indicated otherwise), as follows:
(a) Shares. As of the date hereof, except to the extent provided for
in the Existing Stockholders Agreement, each of the Stockholders 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, except to the extent
provided for in the Existing Stockholders Agreement, each of the Stockholders
does not beneficially own or have any written or unwritten agreement or
arrangement to acquire any securities of the Company other than the shares of
Company Common Stock and options and warrants to purchase shares of Company
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Common Stock indicated on the signature page of this Agreement. Except to the
extent provided for in the Existing Stockholders Agreement, the Stockholders
have 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 that it owns, with no limitations,
qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement.
(b) Organization. Each of the Stockholders is a limited liability
company or partnership duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization.
(c) Authorization; Validity of Agreement; Necessary Action. Each of
the Stockholders has full power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
it of this Agreement and the consummation by it of the transactions
contemplated hereby have been duly and validly authorized by the Stockholders
and no other action or proceedings on the part of the Stockholders are
necessary to authorize the execution and delivery by it of this Agreement and
the consummation by it of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by the Stockholders, and, assuming this
Agreement constitutes a valid and binding obligation of the Company,
constitutes a valid and binding obligation of the Stockholders, enforceable
against it in accordance with its terms, except as enforceability may be
limited by bankruptcy and other similar laws and general principles of equity.
(d) Consents and Approvals; No Violations. Neither the execution,
delivery or performance of this Agreement by each Stockholder nor compliance
by it with any of the provisions hereof will (i) conflict with or result in
any breach of any provision of its certificate of formation, operating
agreement, by-laws or other charter documents, (ii) require any filing with,
or permit, authorization, consent or approval of, any court, administrative
agency or commission or other governmental authority or instrumentality
(except where the failure to obtain such permits, authorizations, consents or
approvals or to make such filings would not materially impair the ability of
the Stockholders to consummate the transactions contemplated hereby), (iii)
result in a violation or breach of, or constitute (with or without due notice
or lapse of time or both) a default (or give rise to any right of termination,
amendment, cancellation of acceleration) under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, guarantee, other
evidence of indebtedness, lease, license, contract, agreement or other
instrument or obligation to which Stockholders are a party or by which it or
any of its properties or assets may be bound (except where such violation,
breach or default would not materially impair or delay the ability of the
stockholders to consummate the transactions contemplated hereby) or (iv) as of
the date hereof, violate any order, writ, injunction, decree, statute, rule or
regulation applicable to it or any of its properties or assets.
5. Stockholders' Agreement Amendment; Co-Investment Agreement. The
parties hereby agree that Section 2 of the Existing Stockholders Agreement
shall be terminated as of, and shall be of no further force or effect
following, the Record Date. Ripplewood Partners, L.P. agrees not to consent,
prior to the Record Date, to any request by The Xxxxxxx and Xxxxxxx Xxxxxxx
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Revocable Trust to put its shares to the Company pursuant to Section 6.01(h)
of the Co-Investment Agreement.
6. 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.
7. Termination. This Agreement shall terminate and shall have 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 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 Stockholders may be
assigned to any other Person without the prior written consent of the 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 acknowledges that (i) the representations, warranties, covenants
and restrictions set forth in this Agreement are necessary, fundamental and
required for the protection of the Company and to preserve for the Company the
benefits of the Financing; (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,
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will result in irreparable harm and damages to the Company which cannot be
adequately compensated by a monetary award. Accordingly, the Company and the
Stockholders hereby expressly agree that in addition to all other remedies
available at law or in equity, the 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.
(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 the Company:
Proxim Corporation
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx
Attention:
Fax:
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
(ii) If to the Stockholders: To the address for notice set
forth on the signature page hereof.
with a copy to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Fax:
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(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 8(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.
(i) Entire Agreement. This Agreement and the Indemnification
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.
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(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.
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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 CORPORATION STOCKHOLDERS
By: /s/ Xxxxx X. Xxxx RIPPLEWOOD PARTNERS, L.P.
--------------------------------
Name: Xxxxx X. Xxxx By: Ripplewood Investments L.L.C.,
--------------------------- its general partner
Title: President and COO By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------- -----------------------------------
Signature
Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Chief Executive Officer
--------------------------------
Print Address:
Ripplewood Investments L.L.C.
--------------------------------------
Xxx Xxxxxxxxxxx Xxxxx
--------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
--------------------------------------
(000) 000-0000
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Telephone Number
(000) 000-0000
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Facsimile Number
Shares Beneficially Owned:
30,992,522 shares of Company Common Stock
0 shares of Company Common Stock
----- issuable upon exercise of
outstanding options or warrants
[SIGNATURE PAGE TO PROXIM VOTING AGREEMENT]
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RIPPLEWOOD CO-INVESTMENT FUND I, L.L.C.
By: Ripplewood Investments L.L.C.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Signature
Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Chief Executive Officer
--------------------------------
Print Address:
Ripplewood Investments L.L.C.
--------------------------------------
Xxx Xxxxxxxxxxx Xxxxx
--------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
--------------------------------------
(000) 000-0000
--------------------------------------
Telephone Number
(000) 000-0000
--------------------------------------
Facsimile Number
Shares Beneficially Owned:
1,097,534 shares of Company Common Stock
0 shares of Company Common Stock
----- issuable upon exercise of
outstanding options or warrants
[SIGNATURE PAGE TO PROXIM VOTING AGREEMENT]
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