Exhibit 2.2
FORM OF VOTING
AGREEMENT
THIS VOTING AGREEMENT (this
“ Agreement ”) is made and entered into as of
March 14, 2005 by and among Mimix Broadband, Inc., a Texas
corporation (“ Mimix ”), and the undersigned
shareholder (“ Shareholder ”) of Celeritek,
Inc., a California corporation (the “ Company
”).
W I T N E S S E T
H:
WHEREAS, Mimix and the Company are
entering into an Asset Purchase Agreement (the “ Purchase
Agreement ”), which provides for the Company’s sale
of certain assets relating to its semiconductor division to Mimix
(the “ Transaction ”), and the Company is
seeking shareholder approval of the Transaction.
WHEREAS, each Shareholder is the
beneficial owner of such number of shares of the Company as is
indicated on such Shareholder’s signature page to this
Agreement.
WHEREAS, in consideration of the
execution of the Purchase Agreement by Mimix, Shareholder (in his
or her capacity as such) agrees to vote the Shares and the New
Shares (each as defined below) of the Company over which
Shareholder has voting power to approve of the Transaction as
contemplated by the Purchase Agreement.
NOW, THEREFORE, in consideration of
the promises and the mutual covenants and agreements herein
contained, intending to be legally bound, the parties hereto hereby
agree as follows:
1. Capitalized Terms
.
(a) The
following capitalized terms shall have the respective meanings
ascribed thereto below:
“ Expiration Date
” shall mean the earlier to occur of (i) such date and
time as the Purchase Agreement shall have been terminated pursuant
to Article 10 thereof or (ii) such date and time
as the Transaction shall be consummated in accordance with the
terms and provisions of the Purchase Agreement.
“ New Shares ”
shall mean any shares of the Company that Shareholder purchases or
with respect to which Shareholder otherwise acquires beneficial
ownership after the date of this Agreement and prior to the
Expiration Date, including, without limitation, any shares issued
or issuable upon the conversion, exercise or exchange, as the case
may be, of any shares held by Shareholder which are convertible
into, or exercisable or exchangeable for, capital stock of the
Company. New Shares shall be subject to the terms and conditions of
this Agreement to the same extent as if they constituted
Shares.
“ Person ” shall
mean any individual, corporation, limited liability company,
partnership or other entity, or governmental authority.
“ Shares ” shall
mean all capital stock of the Company (including all options,
warrants and other rights to acquire shares) beneficially owned by
Shareholder as of the date of this Agreement.
“ 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 disposes of such security or any interest in such
security; 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.
(b) Capitalized
terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Purchase Agreement (as defined above).
2. Restrictions on Transfer
of Shares .
(a)
Transfer of Shares . During the period from the date of this
Agreement through the Expiration Date, Shareholder shall not cause
or permit, directly or indirectly, any Transfer of any of the
Shares or New Shares to be effected; provided, however ,
that notwithstanding the foregoing, Shareholder may transfer Shares
to a third party if the transferee shall have agreed in writing to
hold such Shares and New Shares (or interest in such Shares or New
Shares) subject to, and agree to abide by, all of the terms and
conditions of this Agreement.
(b)
Transfer of Voting Rights . During the period from the date
of this Agreement through the Expiration Date, Shareholder shall
not (i) deposit (or permit the deposit of) any Shares or New
Shares in a voting trust or (ii) grant any proxy or power of
attorney or enter into any voting agreement or similar agreement in
contravention of the obligations of Shareholder under this
Agreement with respect to any of the Shares or New Shares.
3. Proxy . Shareholder
hereby revokes all prior proxies or powers of attorney with respect
to any and all of Shareholder’s Shares. Through the
Expiration Date, Shareholder hereby constitutes and appoints Mimix,
or any nominee designated by Mimix, with the full power of
substitution at any time during the term of this Agreement, as
Shareholder’s true and lawful attorney and proxy (“
Proxy ”), for and in its name, place, and stead, in
the Proxy’s discretion, to demand that the Secretary of the
Company call a special meeting of the shareholders of the Company
for the purpose of considering any matter referred to in
Article 2 of the Purchase Agreement and to vote each Share
held by Shareholder, as Shareholder’s Proxy in respect of any
such matter, at every annual, adjourned or postponed meeting of the
shareholders or the Company, including, without limitation, the
right to sign its name as Shareholder (or to direct the recordowner
to sign its name as Shareholder) to any consent, certificate, or
other document relating to the Company that the state of California
might permit or require. THE FOREGOING PROXY AND POWER OF ATTORNEY
ARE IRREVOCABLE AND COUPLED WITH AN INTEREST THROUGHOUT THE TERM OF
THIS AGREEMENT.
-2-
4. Agreement to Vote
Shares . During the period from the date of this Agreement
through the Expiration Date, at every meeting of the Shareholders
of the Company called, and at every adjournment or postponement
thereof, and on every action or approval by written consent of the
Shareholders of the Company, Shareholder (in his, her or its
capacity as such) shall cause the Shares and any New Shares to be
voted (a) in favor of approval of the Purchase Agreement and
the Transactions; and (b) unless the Purchase Agreement has
been terminated by Buyer, against any Superior Proposal or against
any proposal which would result in a breach of any covenant,
representation or warranty or any other agreement of the Company
under the Purchase Agreement or could reasonably be expected to
result in any breach of the Company’s obligations under the
Purchase Agreement.
5. No Solicitation .
Shareholder covenants and agrees that, during the term of this
Agreement, it shall not, directly or indirectly, solicit, initiate,
knowingly encourage, or take any other action designed to
facilitate any inquiries or the making or any proposal from any
person (other than from Mimix) relating to any transaction that
constitutes a Superior Proposal. Shareholder further covenants and
agrees that it shall not participate in any discussions or
negotiations (except with Mimix) regarding, or furnish to any
person (other than Mimix) any information with respect to, or
otherwise cooperate in any way with, or assist or participate in or
facilitate or encourage, any effort or attempt by any person (other
than Mimix) to make or effect any transaction that may constitute a
Superior Proposal. Shareholder immediately shall ce
|
