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 o
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