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EXHIBIT 3
PROXIM, INC.
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
January 23, 2001 by and between Proxim, Inc., a Delaware corporation ("Parent"),
and the undersigned stockholder and/or option holder (the "Stockholder") of
Netopia, Inc., a Delaware corporation (the "Company").
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 Company, and such
number of shares of capital stock of the Company 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
Parent, 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 Company
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 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, 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 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.
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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
Parent 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 Company 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 Company 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 Merger and the adoption and approval
of the Reorganization Agreement, and in favor of each of the other actions
contemplated by the Reorganization Agreement and the Proxy and any action
required in furtherance thereof;
(b) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the transactions
contemplated by the Reorganization Agreement;
(c) against any other action that is intended, or could reasonably be
expected to, impede, interfere with, delay, postpone, discourage or
adversely affect the Merger or any of the other transactions contemplated
by the Reorganization Agreement; and
(d) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company or any subsidiary of
the Company, any reclassification or recapitalization of the capital stock
of the Company or any subsidiary of the Company, or any sale of assets,
change of control, or acquisition of the Company or any subsidiary of the
Company by any other person, or any consolidation or merger of the Company
or any subsidiary of the Company with or into any other person.
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 Parent 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 Parent 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 Company Common Stock, and the options, warrants and other rights to purchase
shares of Company 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 Company other than the shares
of Company Common Stock, and options, warrants and other rights to purchase
shares of Company Common
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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 Parent, 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 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 Parent.
(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 Parent and to preserve for Parent 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 Parent which cannot be adequately compensated by a monetary award.
Accordingly, Parent and the Stockholder hereby expressly agree that in addition
to all other remedies available at law or in equity, Parent 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.
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(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 Parent and the Stockholder with respect to the subject matter hereof and
thereof, and supersede all prior discussions, agreements and understandings
between Parent 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 Parent:
Proxim, Inc.
000 XxXxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy 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
If to Stockholder:
To the address for notice set forth on the signature page hereof.
with a copy to:
Netopia, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and 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
(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 Parent may deem necessary or
desirable, in the reasonable opinion of Parent, to carry out and effectuate the
purpose and intent of this Agreement.
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(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 undersigned have caused this Agreement to be duly
executed as of the date first written above.
PROXIM, 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]
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Netopia, Inc., a Delaware corporation (the
"Company"), hereby irrevocably (to the fullest extent permitted by law) appoints
the directors on the Board of Directors of Proxim, Inc., a Delaware corporation
("Parent"), 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
Company that now are or hereafter may be beneficially owned by the undersigned,
and any and all other shares or securities of the Company 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 Company 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 Parent and the undersigned
stockholder (the "Voting Agreement"), and is granted in consideration of Parent
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 Company and in every written consent in lieu of such
meeting:
(i) in favor of approval of the Merger and the adoption and approval
of the Reorganization Agreement, and in favor of each of the other actions
contemplated by the Reorganization Agreement and any action required in
furtherance thereof;
(ii) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger 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 Merger or any of the other transactions contemplated
by the Reorganization Agreement; and
(iv) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company or any subsidiary of
the Company, any reclassification or recapitalization of the capital stock
of the Company or any subsidiary of the Company, or any sale of assets,
change of control, or acquisition of the Company or any subsidiary of the
Company by any other person, or any consolidation or merger of the Company
or any subsidiary of the Company with or into any other person.
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.
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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]
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Dated: January 23, 2001
Signature of Stockholder:
Print Name of Stockholder:
Shares beneficially owned:
------------------------------------------------------ shares
of the Company Common Stock
------------------------------------------------------ shares
of the Company Common Stock
issuable upon the exercise of
outstanding
options, warrants or other rights
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
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