EXHIBIT 99.3
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") and Xxxxxxxx X.
Xxxxx, a Stockholder (the "STOCKHOLDER") 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 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 Class A common stock of the Company
(the "COMPANY COMMON STOCK") as is set forth on the signature page of this
Agreement (including shares owned of record by Seaview Holdings L.L.C. and The
Xxxxx XX Investment Trust).
C. As an inducement and condition to entering into the Purchase
Agreement, Warburg and Broadview have required that the Stockholder agree, and
the Stockholder has agreed, to enter into this Agreement.
D. In consideration of, among other matters, the execution and delivery
of the Purchase Agreement by Warburg and Broadview, the Stockholder (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 the Stockholder has voting power so as to facilitate the transactions
contemplated by the Purchase Agreement.
E. The Company has provided the Stockholder 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) "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.
(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) "RECORD DATE" shall mean the record date, established pursuant to
the Company's bylaws, relating to the Stockholders Meeting.
(d) "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 Stockholder 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 Stockholder acquires
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.
(e) "STOCKHOLDERS' MEETING" shall mean the meeting of Stockholders of
the Company to approve the Financing and the transactions contemplated thereby.
(f) 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 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. The
Stockholder hereby agrees that, at all times during the period commencing with
the execution and delivery of this
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Agreement until the Record 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 Record 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.
(c) Limitation on Registration of Transfer. The Stockholder agrees
with, and covenants to, Warburg and Broadview that the Stockholder 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 Stockholder (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 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. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants 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, the Stockholder 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, the Stockholder 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 Common Stock indicated on the
signature page of this Agreement. The Stockholder 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 that it owns, with no limitations, qualifications or restrictions on such
rights, subject to applicable federal securities laws and the terms of this
Agreement.
5. Waiver of Certain Rights. The Stockholder hereby agrees to waive any
and all rights granted to it pursuant to the last four (4) sentences of Section
6.01(h) (beginning with the words
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"Subject to Section (6.01(d)(iii).....") of the Amended and Restated Employment
and Co-Investment Agreement, dated as of October 31, 1999, among Ripplewood
Partners, L.P., WMC Holding Corp., the Stockholder and the Company.
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 Stockholder 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
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representation, warranty, covenant or restriction, or any other term or
provision of this Agreement, will result in irreparable harm and damages to the
Company which cannot be adequately compensated by a monetary award. Accordingly,
the Company and the Stockholder 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 Stockholder: To the address for notice set forth
on the signature page hereof.
(h) Enforcement; Consent to Jurisdiction; Waiver of Jury Trial.
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(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 contains 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.
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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 STOCKHOLDER
By: Xxxxx X. Xxxx By: /s/ Xxxxxxxx Xxxxx
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Signature
Name: Xxxxx X. Xxxx Name: Xxxxxxxx Xxxxx
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Title: President and COO
---------------------------- Print Address:
Proxim Corporation
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000 Xxxxxxx Xxxxx
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Xxxxxxxxx, XX 00000
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(000) 000-0000
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Telephone Number
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(000) 000-0000
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Facsimile Number
Shares Beneficially Owned:
5,078,222 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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