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As filed with the Securities and Exchange Commission on December 27, 1999
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PROXIM, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 77-0059429
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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510 DEGUIGNE DRIVE
SUNNYVALE, CALIFORNIA 94086
(408) 731-2700
(Address, including zip code and telephone number, including area code,
of registrant's principal executive offices)
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DAVID C. KING
PRESIDENT AND CHIEF EXECUTIVE OFFICER
510 DEGUIGNE DRIVE
SUNNYVALE, CA 94086
(408) 731-2700
(Name, address, including zip code and telephone number, including area code,
of agent for service)
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Copies to:
JEFFREY D. SAPER, ESQ.
ROBERT G. DAY, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
FAX: (650) 493-6811
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Approximate date of commencement of proposed sale to the public:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933 (the "Securities Act"), other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED SHARE(1) PRICE REGISTRATION FEE
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Common Stock, par value $.001
per share 204,211 shares $75.875 $15,494,510 $4,091
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(1) The price of $75.875 per share, which was the average of the high
and low prices of the Registrant's Common Stock on the Nasdaq National Market on
December 22, 1999, is set forth solely for the purposes of calculating the
registration fee in accordance with Rule 457(c) of the Securities Act of 1933,
as amended.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the Registration Statement shall become effective on
such date as the Securities and Exchange Commission, acting pursuant to Section
8(a), may determine.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities Exchange Commission is effective. This prospectus is not any offer to
sell these securities and is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
PROSPECTUS
(Subject to completion, dated December 27, 1999)
204,211 SHARES
PROXIM, INC.
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COMMON STOCK
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This prospectus relates to the public offering, which is not being underwritten,
of up to 106,254 shares of our Common Stock which is held by some of our current
stockholders. The selling stockholders identified in this prospectus acquired
their shares of our Common Stock in a private transaction in which Proxim
acquired WaveSpan Corporation, a California corporation.
The prices at which such stockholders may sell the shares will be determined by
the prevailing market price for the shares or in negotiated transactions. We
will not receive any of the proceeds from the sale of the shares.
Our Common Stock is listed on the Nasdaq National Market under the symbol
"PROX." On December 22, 1999, the average of the high and low price for our
Common Stock was $75.875 per share.
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INVESTING IN THE COMMON STOCK INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 3.
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THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS HAVE NOT
APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is December ____, 1999.
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No person has been authorized to give any information or to make any
representations other than those contained in this prospectus in connection with
the offering made hereby, and if given or made, such information or
representations must not be relied upon as having been authorized by Proxim,
Inc. (referred to in this prospectus as "Proxim," the "Company" and "we"), any
selling stockholder or by any other person. Neither the delivery of this
prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that information herein is correct as of any time subsequent to
the date hereof. This prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any security other than the securities covered
by this prospectus, nor does it constitute an offer to or solicitation of any
person in any jurisdiction in which such offer or solicitation may not lawfully
be made.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public conference rooms. Our SEC filings are also available to the public
from the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the
SEC will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Section
13a, 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until our
offering is completed.
(1) Proxim's Annual Report on Form 10-K, for the year ended
December 31, 1998;
(2) Proxim's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999;
(3) Proxim's Quarterly Report on Form 10-Q for the quarter ended June
30, 1999;
(4) Proxim's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999;
(5) Proxim's Current Report on Form 8-K, filed with the Commission on
April 30, 1999; and
(6) The description of our Common Stock contained in our Registration
Statement on Form 8-A, filed with the Commission on October 21,
1993.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Keith E. Glover
Vice President, Finance and Chief Financial Officer
Proxim, Inc.
510 DeGuigne Drive
Sunnyvale, California 94086
(408) 731-2700
You should rely only on the information incorporated by reference or
provided in this prospectus or the prospectus supplement. We have authorized no
one to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus or the prospectus supplement is
accurate as of any date other than the date on the front of the document.
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PROXIM
Proxim designs, manufactures and markets high performance wireless local
area networking, or LAN, products based on radio frequency, or RF, technology.
Proxim's highly integrated wireless client adapters and network infrastructure
systems seamlessly extend existing enterprise LANs to enable mobility-driven
applications in a wide variety of in-building and campus area environments.
Introduced in 1994, Proxim's RangeLAN2(TM) 2.4 GHz wireless LAN technology has
been adopted by a number of major mobile computer system and handheld data
terminal manufacturers, as well as many leading wireless solution providers, for
real-time data collection applications in manufacturing, warehousing,
transportation and retailing and for point-of-service network applications in
healthcare, hospitality, education and financial services.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated herein by reference
contain forward-looking statements within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act. Words such as "anticipates,"
"expects," "intends," "plans," "believes," "seeks," "estimates," variations of
such words and similar expressions are intended to identify such forward-looking
statements. These statements are not guarantees of future performance and are
subject to certain risks, uncertainties and assumptions that are difficult to
predict. Therefore, actual results could differ materially from those expressed
or forecasted in any such forward-looking statements as a result of certain
factors, including those set forth in "Risk Factors," as well as those noted in
the documents incorporated herein by reference. In connection with
forward-looking statements which appear in these disclosures, investors should
carefully review the factors set forth in this prospectus under "Risk Factors."
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RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. The risks and uncertainties described below are not the
only ones facing our company. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also impair our business
operations.
If any of the following risks actually occur, our business, financial
condition or results of operations could be materially adversely affected. In
such case, the trading price of our common stock could decline and you could
lose all or part of your investment.
This prospectus also contains forward-looking statements that involve
risks and uncertainties. Our actual results could differ materially from those
anticipated in these forward-looking statements as a result of certain factors,
including the risks faced by us described below and elsewhere in this
prospectus.
OUR OPERATING RESULTS ARE LIKELY TO FLUCTUATE SIGNIFICANTLY AND MAY FAIL TO MEET
OR EXCEED THE EXPECTATIONS OF SECURITIES ANALYSTS OR INVESTORS, CAUSING OUR
STOCK PRICE TO DECLINE.
Our operating results have fluctuated in the past and are likely to
continue to fluctuate in the future on annual and quarterly basis, due to
numerous factors, many of which are outside of our control.
Some of the factors that may cause these fluctuations include:
- changing market demand for, and declines in the average selling
prices of, our products;
- the timing of and delays or cancellations of significant orders
from major customers;
- the loss of one or more of our major customers;
- the cost, availability and quality of components from our
suppliers;
- the cost, availability, and quality of assemblies from contract
and subcontract manufacturers;
- the lengthy sales and design-in cycles for original equipment
manufacturer, or OEM, products;
- delays in the introduction of our new products;
- competitive product announcements and introductions;
- market adoption of new technologies;
- market adoption of radio frequency, or RF, standards-based
products (such as those compliant with the IEEE 802.11 or the
Home RF SWAP standards);
- the mix of products sold;
- the effectiveness of our distribution channels and our success in
developing new distribution channels;
- the sell-through rate of our Symphony products through consumer
retail channels;
- management of retail channel inventories;
- the failure to anticipate changing customer product requirements;
- seasonality in demand;
- manufacturing capacity and efficiency;
- changes in the regulatory environment, product health and safety
concerns;
- Year 2000 issues; and
- general economic conditions.
Historically, we have not operated with a significant order backlog and
a substantial portion of our revenue in any quarter has been derived from orders
booked and shipped in that quarter. Accordingly, our revenue expectations are
based almost entirely on internal estimates of future demand and not on firm
customer orders. Planned operating expense levels are relatively fixed in the
short term and are based in large part on these estimates. If orders and revenue
do not meet expectations, our operating results could be materially adversely
affected. In this regard, in the third quarter of 1997, we experienced a
decrease in
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revenue and an operating loss as a result of a significant decrease in orders
from two of our major customers. We can offer no assurance that we will not
experience future quarter to quarter decreases in revenue or quarterly operating
losses. In addition, due to the timing of orders from OEM customers, we have
often recognized a substantial portion of our revenue in the last month of a
quarter. As a result, minor fluctuations in the timing of orders and the
shipment of products have caused, and may in the future cause, operating results
to vary significantly from quarter to quarter.
WE DEPEND SIGNIFICANTLY ON A LIMITED NUMBER OF OEM CUSTOMERS.
A substantial portion of our revenue has been derived from a limited
number of customers, most of which are OEM customers. Approximately 55%, 59% and
62% of our sales during the first nine months of 1999, and calendar years 1998
and 1997, respectively, were to OEM customers. In addition, sales to one
customer represented approximately 31% of our revenue during the first nine
months of 1999. Sales to two customers represented approximately 41% and 11% of
our revenue during 1998. Sales to three customers represented approximately 28%,
17% and 10% of our revenue during 1997. We expect that sales to a limited number
of OEM customers will continue to account for a substantial portion of our
revenue for the foreseeable future. We also have experienced quarter to quarter
variability in sales to each of our major OEM customers and expect this pattern
to continue in the future.
Sales of many of our wireless networking products depend upon the
decision of a prospective OEM customer to develop and market wireless
solutions which incorporate our wireless technology. OEM customers'
orders are affected by a variety of factors, including the following:
- new product introductions;
- regulatory approvals;
- end-user demand for OEM customers' products;
- product life cycles;
- inventory levels;
- manufacturing strategies;
- pricing;
- contract awards; and
- competitive and general economic conditions.
For these and other reasons, the design-in cycle associated with the
purchase of our wireless products by OEM customers is quite lengthy, generally
ranging from six months to two years, and is subject to a number of significant
risks, including customers' budgeting constraints and internal acceptance
reviews, that are beyond our control. Because of the lengthy sales cycle, we
typically plan our production and inventory levels based on internal forecasts
of OEM customer demand, which is highly unpredictable and can fluctuate
substantially. In addition, our agreements with OEM customers typically do not
require minimum purchase quantities and a significant reduction, delay or
cancellation of orders from any of these customers could materially and
adversely affect our operating results. If revenue forecasted from a specific
customer for a particular quarter is not realized in that quarter, our operating
results for that quarter could be materially adversely affected. The loss of one
or more of, or a significant reduction in orders from, our major OEM customers
could materially and adversely affect our operating results. In addition, we can
offer no assurance that we will become a qualified supplier for new OEM
customers or that we will remain a qualified supplier for existing OEM
customers.
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WE PURCHASE SEVERAL KEY COMPONENTS USED IN THE MANUFACTURE OR INTEGRATION OF OUR
PRODUCTS FROM SOLE OR LIMITED SOURCES.
Certain parts and components used in our products, including our
proprietary application specific integrated circuits, or ASICs, monolithic
microwave integrated circuits, or MMICs, and assembled circuit boards, are only
available from single sources, and certain other parts and components are only
available from a limited number of sources. Our reliance on these sole source or
limited source suppliers involves risks and uncertainties, including the
following:
- the possibility of a shortage or discontinuation of key
components; and
- reduced control over delivery schedules, manufacturing
capability, quality, yields and costs.
Any reduced availability of these parts or components when required
could significantly impair our ability to manufacture and deliver our products
on a timely basis and result in the cancellation of orders, which could
materially adversely affect our operating results. In addition, the purchase of
some key components involves long lead times and, in the event of unanticipated
increases in demand for our products, we have in the past been, and may in the
future be, unable to manufacture some products in a quantity sufficient to meet
our customers' demand in any particular period. We have no guaranteed supply
arrangements with our sole or limited source suppliers, do not maintain an
extensive inventory of parts or components, and customarily purchase sole or
limited source parts and components pursuant to purchase orders placed from time
to time in the ordinary course of business. Business disruptions, production
shortfalls, production quality or financial difficulties of a sole or limited
source supplier could materially and adversely affect our business by increasing
product costs, or reducing or eliminating the availability of parts or
components. In an event like this, our inability to develop alternative sources
of supply quickly and on a cost-effective basis could significantly impair our
ability to manufacture and deliver our products on a timely basis and could
materially adversely affect our business and operating results.
WE NEED TO EXPAND OUR LIMITED MANUFACTURING CAPABILITY AND INCREASINGLY DEPEND
ON CONTRACT MANUFACTURERS FOR OUR MANUFACTURING REQUIREMENTS.
We currently have limited manufacturing capability and no experience in
large scale manufacturing. If our customers were to concurrently place orders
for unexpectedly large product quantities, our present manufacturing capacity
might be inadequate to meet the demand. We can offer no assurance that we will
be able to develop or contract for additional manufacturing capacity on
acceptable terms on a timely basis. In addition, in order to compete
successfully, we will need to achieve significant product cost reductions.
Although we intend to achieve cost reductions through engineering improvements
and production economies, we can offer no assurance that we will be able to do
so. In order to remain competitive, we also must continue to introduce new
products and processes into our manufacturing environment. We currently conduct
our manufacturing operations for all of our products in our new corporate
headquarters in Sunnyvale, California. In addition, we rely on contract and
subcontract manufacturers for turnkey manufacturing and circuit board assemblies
which subjects us to additional risks, including a potential inability to obtain
an adequate supply of finished assemblies and assembled circuit boards and
reduced control over the price, timely delivery and quality of such finished
assemblies and assembled circuit boards. If our Sunnyvale facility were to
become incapable of operating, even temporarily, or were unable to operate at or
near its current or full capacity for an extended period, our business and
operating results could be materially adversely affected. Changes in our
manufacturing operations to incorporate new products and processes could cause
disruptions, which, in turn, could adversely affect customer relationships,
cause a loss of market opportunities and negatively affect our business and
operating results.
We have in the past experienced higher than expected demand for our
products. This resulted in delays in the delivery of certain products due to
temporary shortages of certain components, particularly components with long
lead times, and insufficient manufacturing capacity. Due to the complex nature
of our
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products and manufacturing processes, the worldwide demand for some wireless
technology components and other factors, we can offer no assurance that delays
in the delivery of products will not occur in the future.
WIRELESS COMMUNICATIONS AND NETWORKING MARKETS ARE SUBJECT TO RAPID
TECHNOLOGICAL CHANGE AND TO COMPETE, WE MUST CONTINUALLY INTRODUCE NEW PRODUCTS
THAT ACHIEVE BROAD MARKET ACCEPTANCE.
The wireless communications industry is characterized by rapid
technological change, short product life cycles and evolving industry standards.
To remain competitive, we must develop or gain access to new technologies in
order to increase product performance and functionality, reduce product size and
maintain cost-effectiveness.
Our success is also dependent on our ability to develop new products for
existing and emerging wireless communications markets, to introduce such
products in a timely manner and to have them designed into new products
developed by OEM customers. The development of new wireless networking products
is highly complex, and, from time to time, we have experienced delays in
developing and introducing new products. Due to the intensely competitive nature
of the our business, any delay in the commercial availability of new products
could materially and adversely affect our business, reputation and operating
results. In addition, if we are unable to develop or obtain access to advanced
wireless networking technologies as they become available, or are unable to
design, develop and introduce competitive new products on a timely basis, or are
unable to hire or retain qualified engineers to develop new technologies and
products, our future operating results would be materially and adversely
affected. We have expended substantial resources in developing products that are
designed to conform to the IEEE 802.11 standard that received final approval in
June 1997. We can offer no assurance, however, that our IEEE 802.11 compliant
products or the IEEE 802.11 standard will have a meaningful commercial impact.
We have substantially increased research and development expenses to
develop new technologies related to 5 GHz high-speed wireless LAN products. In
this regard, in the fourth quarter of 1997, we recorded a charge of $2,500,000
to research and development expense for the acquisition of technology to be used
in developing a new family of 5 GHz high-speed wireless LAN products.
Additionally, during the interim periods of 1999, we recorded a $2,000,000
charge related to an investment in a start-up company developing ultra-broadband
wireless products. In addition, we are a core member of the HomeRF Working
Group, an industry consortium that is establishing an open industry standard,
called the SWAP specification, for wireless digital communications between PCs
and consumer electronic devices, including a common interface specification that
supports wireless data and voice services in and around the home. We can offer
no assurance that the HomeRF SWAP specification, or products that we develop to
comply with the specification will have a meaningful commercial impact. Further,
given the emerging nature of the wireless LAN market, we can offer no assurance
that the RangeLAN2 products and technology, or our other products or technology,
will not be rendered obsolete by alternative technologies.
THE WIRELESS LOCAL AREA NETWORKING MARKET IS INTENSELY COMPETITIVE AND SOME OF
OUR COMPETITORS ARE LARGER AND BETTER ESTABLISHED.
The wireless local area networking market is extremely competitive and we
expect that competition will intensify in the future. Increased competition
could adversely affect our business and operating results through pricing
pressures, the loss of market share and other factors. The principal competitive
factors in the wireless LAN market include the following:
- effective RF coverage area;
- data throughput;
- wireless networking protocol sophistication;
- network scalability;
- roaming capability;
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- power consumption;
- product miniaturization;
- product reliability;
- product time to market;
- product certifications;
- price;
- manufacturing capabilities and experience;
- effective distribution channels;
- ability to support new industry standards; and
- company reputation.
We could be at a disadvantage to competitors, particularly Cisco Systems
and Lucent Technologies, that have broader distribution channels and brand
recognition and offer more diversified product lines.
We have several competitors in our commercial wireless LAN business,
including Lucent Technologies, Nokia, Symbol Technologies and Aironet Wireless
Communications (which has announced an agreement to be acquired by Cisco
Systems), among others. We also face competition from a variety of companies
that offer different technologies in the nascent home networking market,
including several companies developing competing wireless networking products.
Additionally, numerous companies have announced their intention to develop
competing products in both the commercial wireless LAN and home networking
markets. In addition to competition from companies that offer or have announced
their intention to develop wireless LAN products, we could face future
competition from companies that offer products which replace network adapters or
offer alternative communications solutions, or from large computer companies, PC
peripheral companies, as well as other large networking equipment companies.
Furthermore, we could face competition from certain of our OEM customers which
have, or could acquire, wireless engineering and product development
capabilities. We can offer no assurance that we will be able to compete
successfully against these competitors or that competitive pressures we face
will not adversely affect our business or operating results.
Many of our present and potential competitors have substantially greater
financial, marketing, technical and other resources with which to pursue
engineering, manufacturing, marketing, and distribution of their products. These
competitors may succeed in establishing technology standards or strategic
alliances in the wireless LAN market, obtain more rapid market acceptance for
their products, or otherwise gain a competitive advantage. We can offer no
assurance that we will succeed in developing products or technologies that are
more effective than those developed by our competitors. Furthermore, we compete
with companies that have high volume manufacturing and extensive marketing and
distribution capabilities, areas in which we have only limited experience. We
can offer no assurance that we will be able to compete successfully against
existing and new competitors as the wireless LAN market evolves and the level of
competition increases.
WE DEPEND UPON INTERNATIONAL SALES AND OUR ABILITY TO SUSTAIN AND INCREASE
INTERNATIONAL SALES IS SUBJECT TO MANY RISKS WHICH COULD ADVERSELY AFFECT OUR
OPERATING RESULTS.
Revenue from shipments by us to customers outside the United States,
principally to a limited number of distributors and OEM customers, represented
21%, 17% and 26% of total revenue during the first nine months of 1999, and
calendar years 1998 and 1997. We expect that revenue from shipments to
international customers will vary as a percentage of total revenue. Sales to
international customers or to U.S. OEM customers who ship to international
locations are subject to a number of risks and uncertainties including:
- changes in foreign government regulations and telecommunications
standards;
- export license requirements;
- tariffs, taxes and other trade barriers;
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- fluctuations in currency exchange rates;
- longer payment cycles for international distributors;
- difficulty in collecting accounts receivable;
- difficulty in staffing and managing foreign operations; and
- potential political and economic instability.
While international sales are typically denominated in U.S. dollars and
we typically extend limited credit terms, fluctuations in currency exchange
rates could cause our products to become relatively more expensive to customers
in a particular country, leading to a reduction in sales or profitability in
that country. We can offer no assurance that foreign markets will continue to
develop or that we will receive additional orders to supply our products to
foreign customers. Our business and operating results could be materially and
adversely affected if foreign markets do not continue to develop or if we do not
receive additional orders to supply our products for use by foreign customers.
In the latter part of 1997 and throughout 1998, capital markets in Asia were
highly volatile, resulting in fluctuations in Asian currencies and other
economic instabilities. In this regard, in the third quarter of 1997 and
continuing through the second quarter of 1998, we experienced a significant
decrease in orders from NTT-IT, one of our major Japanese customers, resulting
in a significant decrease in quarterly revenue and an operating loss in the
third quarter of 1997.
OUR FAILURE TO ADEQUATELY PROTECT OUR PROPRIETARY RIGHTS COULD ADVERSELY AFFECT
OUR ABILITY TO COMPETE EFFECTIVELY.
We rely on a combination of patents, trademarks, non-disclosure
agreements, invention assignment agreements and other security measures in order
to establish and protect our proprietary rights. We have been issued four U.S.
patents which were issued in 1991, 1993, 1995 and 1999, and are important to our
current business, and we have five patent applications pending in the U.S. which
relate to our core technologies and product designs. We can offer no assurance
that patents will issue from any of these pending applications or, if patents do
issue, that the claims allowed will be sufficiently broad to protect our
technology. In addition, we can offer no assurance that any patents issued to us
will not be challenged, invalidated or circumvented, or that the rights granted
thereunder will adequately protect us. Since U.S. patent applications are
maintained in secrecy until patents issue, and since publication of inventions
in the technical or patent literature tends to lag behind such inventions by
several months, we cannot be certain that we first created the inventions
covered by our issued patents or pending patent applications or that we were the
first to file patent applications for such inventions or that we are not
infringing on the patents of others. In addition, we have filed, or reserved our
rights to file, a number of patent applications internationally. We can offer no
assurance that any international patent application will issue or that the laws
of foreign jurisdictions will protect our proprietary rights to the same extent
as the laws of the United States.
Although we intend to protect our rights vigorously, there can be no
assurance that the measures we have taken or may take to protect our proprietary
rights will be successful. Litigation may be necessary to enforce our patents,
trademarks or other intellectual property rights, to protect our trade secrets,
to determine the validity and scope of the proprietary rights of others or to
defend against claims of infringement. Litigation could result in substantial
costs and diversion of resources and could materially and adversely affect our
business and operating results. Moreover, we can offer no assurance that in the
future these rights will be upheld. Furthermore, there can be no assurance that
any of our issued patents will provide a competitive advantage or will not be
challenged by third parties or that the patents of others will not adversely
impact our ability to do business. As the number of products in the wireless LAN
market increases, and related functionalities and features overlap, we may
become increasingly subject to infringement claims. These claims also might
require us to enter into royalty or license agreements. Any such claims, with or
without merit, could cause costly litigation and could require significant
management time. There can be no assurance that, if required, we could obtain
such royalty or license agreements on terms acceptable to management. There can
be no assurance that the measures we have taken or may take in the future will
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prevent misappropriation of our technology or that others will not independently
develop similar products, design around our proprietary technology or duplicate
our products.
WE NEED TO EFFECTIVELY MANAGE OUR GROWTH.
Our growth to date has caused, and will continue to cause, a
significant strain on our management, operational, financial and other
resources. Our ability to manage growth effectively will require us to improve
our management, operational and financial processes and controls as well as the
related information and communications systems. These demands will require the
addition of new management personnel and the development of additional expertise
by existing management. The failure of our management team to effectively manage
growth, should it occur, could materially and adversely affect our business and
operating results.
COMPLIANCE WITH GOVERNMENTAL REGULATIONS IN MULTIPLE JURISDICTIONS WHERE WE SELL
OUR PRODUCTS IS DIFFICULT AND COSTLY.
In the United States, we are subject to various Federal Communications
Commission, or FCC, rules and regulations. Current FCC regulations permit
license-free operation in certain FCC-certified bands in the radio spectrum. Our
spread spectrum wireless products are certified for unlicensed operation in the
902-928 MHz and 2.4-2.4835 GHz frequency bands. Operation in these frequency
bands is governed by rules set forth in Part 15 of the FCC regulations. The Part
15 rules are designed to minimize the probability of interference to other users
of the spectrum and, thus, accord Part 15 systems secondary status. In the event
that there is interference between a primary user and a Part 15 user, a higher
priority user can require the Part 15 user to curtail transmissions that create
interference. In this regard, if users of our products experience excessive
interference from primary users, market acceptance of our products could be
adversely affected, which could materially and adversely affecting our business
and operating results. The FCC, however, has established certain standards which
create an irrefutable presumption of noninterference for Part 15 users and we
believe that our products comply with such requirements. We can offer no
assurance that the occurrence of regulatory changes, including changes in the
allocation of available frequency spectrum or modification to the standards
establishing an irrefutable presumption for unlicensed Part 15 users, would not
significantly affect our operations by rendering current products obsolete,
restricting the applications and markets served by our products or increasing
the opportunity for additional competition.
Our products are also subject to regulatory requirements in
international markets and, therefore, we must monitor the development of spread
spectrum and other radio frequency regulations in certain countries that
represent potential markets for our products. While we can offer no assurance
that we will be able to comply with regulations in any particular country, we
design our RangeLAN2, RangeLAN802, Symphony and HomeRF products to minimize the
design modifications required to meet various 2.4 GHz international spread
spectrum regulations. In addition, we will seek to obtain international
certifications for the Symphony and HomeRF product line in countries where there
is a substantial market for home PCs and Internet connectivity. Changes in, or
the failure by us to comply with, applicable domestic and international
regulations could materially adversely affect our business and operating
results. In addition, with respect to those countries that do not follow FCC
regulations, we may need to modify our products to meet local rules and
regulations.
Regulatory changes, including changes in the allocation of available
frequency spectrum, could significantly affect our operations by restricting our
development efforts, rendering current products obsolete or increasing the
opportunity for additional competition. In September 1993 and in February 1995,
the FCC allocated additional spectrum for personal communications services. In
January 1997, the FCC authorized 300 MHz of additional unlicensed frequencies in
the 5 GHz frequency range. In June 1999, the FCC issued a Notice of Proposed
Rulemaking (NPRM) that proposed changing the way allocated frequencies are
utilized by Part 15 spread spectrum systems. These approved and proposed changes
in the allocation and use of available frequency spectrum could create
opportunities for other wireless networking products and services.
- 9 -
<PAGE> 12
There can be no assurance that new regulations will not be promulgated which
could materially and adversely affect our business and operating results.
THERE MAY BE POTENTIAL HEALTH AND SAFETY RISKS RELATED TO OUR PRODUCTS WHICH
COULD NEGATIVELY AFFECT OUR BUSINESS AND PRODUCT SALES.
The intentional emission of electromagnetic radiation has been the
subject of recent public concern regarding possible health and safety risks, and
though our products, when installed in any of the intended configurations, are
designed not to exceed the maximum permissible exposure limits listed in Section
1.1311 of the FCC Regulations, we can offer no assurance that safety issues will
not arise in the future and materially and adversely affect our business and
operating results.
TO COMPETE EFFECTIVELY, WE MUST ESTABLISH AND EXPAND NEW DISTRIBUTION CHANNELS
FOR OUR HOME NETWORKING PRODUCTS.
To date, a substantial percentage of our revenue has been derived from
OEM customers through our direct sales force. We sell our branded RangeLAN2
products through domestic and international distributors. We are also
establishing new distribution channels for our Symphony family of cordless home
and small office networking products. Symphony products are currently sold
through national retailers such as Best Buy, OfficeMax and Staples, computer
retailers such as Fry's Electronics, J&R Computer World and Micro Center,
computer catalogs such as CDW, MobilePlanet and PC Connection, and numerous
on-line retail sites over the Internet, including our own e-commerce Website. In
general, distributors and retailers offer products of several different
companies, including products that may compete with our products. Accordingly,
they may give higher priority to products of other suppliers, thus reducing
their efforts to sell our products. Agreements with distributors and retailers
are generally terminable at their option. Any reduction in sales efforts or
termination of a relationship may materially and adversely affect our business
and operating results. Use of distributors and retailers also entails the risk
that they will build up inventories in anticipation of substantial growth in
sales. If such growth does not occur as anticipated, they may substantially
decrease the amount of product ordered in subsequent quarters. Such fluctuations
could contribute to significant variations in the Company's future operating
results.
IF WE LOSE KEY PERSONNEL OR WE ARE UNABLE TO HIRE ADDITIONAL QUALIFIED PERSONNEL
AS NECESSARY, WE MAY NOT BE ABLE TO EFFECTIVELY MANAGE OUR BUSINESS OR ACHIEVE
OUR OBJECTIVES.
We are highly dependent on the technical and management skills of our
key employees, in particular David C. King, Chairman, President and Chief
Executive Officer, and Juan Grau, Vice President of Engineering. We do not have
employment agreements with, or life insurance on the life of, either person. In
addition, given the rapid technological change in this industry, we believe that
the technical expertise and creative skills of our engineers and other personnel
are crucial in determining our future success. The loss of the services of any
key employee could adversely affect our business and operating results. Our
success also depends in large part on a limited number of key marketing and
sales employees and on our ability to continue to attract, assimilate and retain
additional highly talented personnel. Competition for qualified personnel in the
wireless data communications and networking industries is intense. We can offer
no assurance that we will be successful in retaining our key employees or that
we can attract, assimilate or retain the additional skilled personnel as
required.
OUR STOCK PRICE MAY BE EXTREMELY VOLATILE.
Recently, the price of our common stock has been volatile. We believe
that the price of our common stock may continue to fluctuate, perhaps
substantially, as a result of factors including:
- announcements of developments relating to our business;
- fluctuations in our operating results;
- 10 -
<PAGE> 13
- general conditions in the wireless communications industry or the
worldwide economy;
- a shortfall in revenue or earnings from securities analysts'
expectations or other changes in financial estimates by
securities analysts;
- announcements of technological innovations or new products or
enhancements by us or our competitors;
- developments in patent, copyright or other intellectual property
rights; and
- developments in our relationships with customers, distributors
and suppliers.
In the third quarter of 1997, we announced revenue and operating results
below expectations of securities analysts and investors, resulting in a decrease
in the market price of our common stock. In addition, in recent years the stock
market in general, and the market for shares of high technology stocks in
particular, have experienced extreme price fluctuations, which have often been
unrelated to the operating performance of affected companies. There can be no
assurance that the market price of the our common stock will not experience
significant fluctuations in the future, including fluctuations that are
unrelated to our performance.
- 11 -
<PAGE> 14
USE OF PROCEEDS
Proxim will not receive any of the proceeds from the sale of the shares
offered by this prospectus. All proceeds from the sale of the shares offered
hereby will be for the account of the selling stockholders, as described below.
See "Selling Stockholders" and "Plan of Distribution."
SELLING STOCKHOLDERS
The following table sets forth as of the date of this prospectus, the
name of each of the selling stockholders, the number of shares of Common Stock
that each selling stockholder owns, the number of shares of Common Stock owned
by each selling stockholder that may be offered for sale from time to time by
this prospectus, and the number of shares of Common Stock to be held by each
selling stockholder assuming the sale of all the Common Stock offered hereby.
Some of the selling stockholders may distribute their shares, from time
to time, to their limited and/or general partners, who may sell shares pursuant
to this prospectus. Each selling shareholder may also transfer shares owned by
him by gift, and upon any such transfer the donee would have the same right of
sale as the selling stockholder.
The shares being offered by the selling stockholders were acquired in
connection with our acquisition of WaveSpan Corporation, a California
corporation, in December 1999. We may amend or supplement this prospectus from
time to time to update the disclosure set forth herein.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED OWNED AFTER
PRIOR TO OFFERING(1) NUMBER OF OFFERING(1)
----------------------- SHARES BEING --------------------
NAME OF SELLING STOCKHOLDER NUMBER PERCENT OFFERED NUMBER PERCENT
- ------------------------------------ ------- ------- ------------ ------- -------
<S> <C> <C> <C> <C> <C>
Matrix IV Entrepreneurs Fund, L.P. 3,137 * 3,137 0 *
Matrix Partners IV, L.P. 59,631 * 59,631 0 *
Institutional Venture Management VII 940 * 940 0 *
Institutional Venture Partners
Founders Fund I, L.P. 1,294 * 1,294 0 *
Institutional Venture Partners VII 48,040 * 48,040 0 *
McQuillan Consulting Profit Sharing
Retirement 200 * 200 0 *
Mr. Edmund S. Ruffin, Jr. 12 * 12 0 *
Scott Kriens and Joan Kriens Trust 330 * 330 0 *
VLG Investments 1996 48 * 48 0 *
Foundation Capital Entrepreneurs,
Fund, L.L.C. 2,786 * 2,786 0 *
Foundation Capital, L.P. 25,079 * 25,079 0 *
McKinney Family Trust 400 * 400 0 *
Norwest Venture Partners VI, L.P. 28,266 * 28,266 0 *
Comdisco, Inc. 34,048(2) * 34,048(2) 0 *
Total 204,211 1.7% 204,211 0 *
</TABLE>
- ----------
* Less than 1%.
(1) Based on 11,925,723 shares outstanding as of December 22, 1999.
(2) Such shares are purchasable pursuant to a Payoff Agreement dated
December 2, 1999 by and between the Company and Comdisco, Inc.
- 12 -
<PAGE> 15
PLAN OF DISTRIBUTION
The shares covered by this prospectus may be offered and sold from time
to time by the selling stockholders. The selling stockholders will act
independently of Proxim in making decisions with respect to the timing, manner
and size of each sale. The selling stockholders may sell the shares being
offered hereby on the Nasdaq National Market, or otherwise, at prices and under
terms then prevailing or at prices related to the then current market price, at
varying prices or at negotiated prices. The shares offered hereby may be sold,
without limitation, by one or more of the following means of distribution: (a) a
block trade in which the broker-dealer so engaged will attempt to sell such
shares as agent, but may position and resell a portion of the block as principal
to facilitate the transaction; (b) purchases by a broker-dealer as principal and
resale by such broker-dealer for its own account pursuant to this prospectus;
(c) an over-the-counter distribution in accordance with the rules of the Nasdaq
National Market; (d) ordinary brokerage transactions and transactions in which
the broker solicits purchasers; and (e) in privately negotiated transactions. To
the extent required, this prospectus may be amended and supplemented from time
to time to describe a specific plan of distribution.
In connection with distributions of the shares offered hereby or
otherwise, the selling stockholders may enter into hedging transactions with
broker-dealers or other financial institutions. In connection with such
transactions, broker-dealers or other financial institutions may engage in short
sales of Proxim's common stock in the course of hedging the positions they
assume with selling stockholders. The selling stockholders may also sell
Proxim's common stock short and deliver the shares offered hereby to close out
such short positions. The selling stockholders may also enter into option or
other transactions with broker-dealers or other financial institutions which
require the delivery to such broker-dealer or other financial institution of
shares offered hereby, which shares such broker-dealer or other financial
institution may resell pursuant to this prospectus (as supplemented or amended
to reflect such transaction). The selling stockholders may also pledge the
shares offered hereby to a broker-dealer or other financial institution, and,
upon a default, such broker-dealer or other financial institution, may effect
sales of the pledged shares pursuant to this prospectus (as supplemented or
amended to reflect such transaction). In addition, any shares offered hereby
that qualify for sale pursuant to Rule 144 may, at the option of the holder
thereof, be sold under Rule 144 rather than pursuant to this prospectus.
Any broker-dealer participating in such transactions as agent may
receive commissions from the selling stockholder and/or purchasers of the shares
offered hereby (and, if it acts as agent for the purchaser of such shares, from
such purchaser). Usual and customary brokerage fees will be paid by the selling
stockholder. Broker-dealers may agree with the selling stockholder to sell a
specified number of shares at a stipulated price per share, and, to the extent
such a broker-dealer is unable to do so acting as agent for the selling
stockholder, to purchase as principal any unsold shares at the price required to
fulfill the broker-dealer commitment to the selling stockholder. Broker-dealers
who acquire shares as principal may thereafter resell such shares from time to
time in transactions (which may involve cross and block transactions and which
may involve sales to and through other broker-dealers, including transactions of
the nature described above) in the over-the-counter market, in negotiated
transactions or otherwise at market prices prevailing at the time of sale or at
negotiated prices, and in connection with such resales, may pay to or receive
from the purchasers of such shares commissions computed as described above.
To comply with the securities laws of certain states, if applicable, the
shares offered hereby will be sold in such jurisdictions only through registered
or licensed brokers or dealers. In addition, in certain states the shares
offered hereby may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
- 13 -
<PAGE> 16
We have advised the selling stockholders that the anti-manipulation
rules of Regulation M under the Exchange Act may apply to sales of the shares
offered hereby in the market and to the activities of the selling stockholders
and their affiliates. In addition, we will make copies of this prospectus
available to the selling stockholders and have informed them of the need for
delivery of copies of this prospectus to purchasers at or prior to the time of
any sale of the shares offered hereby. The selling stockholders may indemnify
any broker-dealer than participates in transactions involving the sale of the
shares against certain liabilities, including liabilities arising under the
Securities Act.
Some of the selling stockholders may distribute their shares, from time
to time, to their limited and/or general partners, who may sell shares pursuant
to this prospectus. Each selling shareholder may also transfer shares owned by
him by gift, and upon any such transfer the donee would have the same right of
sale as the selling stockholder.
At the time a particular offer of shares is made, if required, a
prospectus supplement will be distributed that will set forth the number of
shares being offered and the terms of the offering, including the name of any
underwriter, dealer or agent, the purchase price paid by any underwriter, any
discount, commission and other item constituting compensation, any discount,
commission or concession allowed or reallowed or paid to any dealer, and the
proposed selling price to the public.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Bylaws limits the liability of our directors and officers for
expenses to the maximum extent permitted by Delaware law. Delaware law provides
that directors of a corporation will not be personally liable for monetary
damages for breach of their fiduciary duties as directors, except for liability
(i) for any breach of their duty of loyalty to the corporation or its
stockholders; (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law; (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the Delaware General Corporation Law; or (iv) for any
transaction from which the director derived an improper personal benefit.
Our Certificate of Incorporation provides that we must indemnify our
directors and may indemnify our other officers, employees and agents to the
fullest extent permitted by law.
We have entered into agreements to indemnify our directors and officers,
in addition to indemnification provided for in our Bylaws. These agreements,
among other things, indemnify our directors and officers for certain expenses
(including attorneys' fees), judgments, fines and settlement amounts incurred by
any such person in any action or proceeding, including any action by or in the
right of Proxim, arising out of such person's services as an Proxim director or
officer, any subsidiary of Proxim or any other company or enterprise to which
the person provides services at our request.
Proxim's Bylaws also permit us to secure insurance on behalf of any
officer, director, employee or other agent for any liability arising out of his
or her actions in such capacity, regardless of whether the Bylaws would permit
indemnification. We also maintain an insurance policy insuring our directors and
officers against liability for certain acts and omissions while acting in their
official capacities.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling
Proxim pursuant to the foregoing provisions, we have been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is therefore unenforceable.
LEGAL MATTERS
Certain legal matters relating to the validity of the securities offered
hereby will be passed upon for Proxim by Wilson Sonsini Goodrich & Rosati,
Professional Corporation, Palo Alto, California.
- 14 -
<PAGE> 17
EXPERTS
The financial statements incorporated in this Prospectus by reference to the
Annual Report on Form 10-K of Proxim, Inc. for the year ended December 31, 1998
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
- 15 -
<PAGE> 18
================================================================================
PROSPECTIVE INVESTORS MAY RELY ONLY ON THE INFORMATION CONTAINED IN THIS
PROSPECTUS. NEITHER PROXIM NOR ANY SELLING STOCKHOLDER HAS AUTHORIZED ANYONE TO
PROVIDE PROSPECTIVE INVESTORS WITH INFORMATION DIFFERENT FROM THAT CONTAINED IN
THIS PROSPECTUS. THIS PROSPECTUS IS NOT AN OFFER TO SELL NOR IS IT SEEKING AN
OFFER TO BUY THE SHARES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT
PERMITTED. THE INFORMATION CONTAINED IN THIS PROSPECTUS IS CORRECT ONLY AS OF
THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF THE DELIVERY OF THIS
PROSPECTUS OR ANY SALE OF THE SHARES.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
WHERE YOU CAN FIND MORE INFORMATION ABOUT PROXIM .............................1
FORWARD-LOOKING STATEMENTS ...................................................2
RISK FACTORS .................................................................3
USE OF PROCEEDS .............................................................12
SELLING STOCKHOLDERS ........................................................12
PLAN OF DISTRIBUTION ........................................................13
INDEMNIFICATION OF DIRECTORS AND OFFICERS ...................................14
LEGAL MATTERS ...............................................................14
EXPERTS .....................................................................15
</TABLE>
================================================================================
================================================================================
204,211 Shares
PROXIM, INC.
--------------
Common Stock
--------------
PROSPECTUS
December __, 1999
================================================================================
<PAGE> 19
PROXIM, INC.
REGISTRATION STATEMENT ON FORM S-3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The Company will pay all expenses incident to the offering and sale to
the public of the shares being registered other than any commissions and
discounts of underwriters, dealers or agents and any transfer taxes. Such
expenses are set forth in the following table. All of the amounts shown are
estimates except for the Securities and Exchange Commission ("SEC") registration
fee and the Nasdaq Stock Market listing fee.
<TABLE>
<S> <C>
SEC Registration Fee.................................. $ 4,091
-------
Accounting fees and expenses.......................... $ 5,000
-------
Legal fees and expenses............................... $10,000
-------
Nasdaq Stock Market listing fee....................... $ 4,125
-------
Miscellaneous......................................... $ 5,000
-------
Total................................................. $28,216
-------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Bylaws limits the liability of our directors and officers for
expenses to the maximum extent permitted by Delaware law. Delaware law provides
that directors of a corporation will not be personally liable for monetary
damages for breach of their fiduciary duties as directors, except for liability
(i) for any breach of their duty of loyalty to the corporation or its
stockholders; (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law; (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the Delaware General Corporation Law; or (iv) for any
transaction from which the director derived an improper personal benefit.
Our Certificate of Incorporation provides that we must indemnify our
directors and may indemnify our other officers, employees and agents to the
fullest extent permitted by law.
We have entered into agreements to indemnify our directors and officers,
in addition to indemnification provided for in our Bylaws. These agreements,
among other things, indemnify our directors and officers for certain expenses
(including attorneys' fees), judgments, fines and settlement amounts incurred by
any such person in any action or proceeding, including any action by or in the
right of Proxim, arising out of such person's services as an Proxim director or
officer, any subsidiary of Proxim or any other company or enterprise to which
the person provides services at our request.
Proxim's Bylaws also permit us to secure insurance on behalf of any
officer, director, employee or other agent for any liability arising out of his
or her actions in such capacity, regardless of whether the Bylaws would permit
indemnification. We also maintain an insurance policy insuring our directors and
officers against liability for certain acts and omissions while acting in their
official capacities.
II-1
<PAGE> 20
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
-----------
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants.
24.1 Power of Attorney (contained on Page II-5).
</TABLE>
ITEM 17. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement: (i) to include any
prospectus required by section 10(a)(3) of the Securities Act; (ii) to reflect
in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) (Section 230.424(b) of this chapter) if, the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement; provided, however, that (i) and
(ii) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective amendment
by (i) and (ii) is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. Undertaking Regarding Filings Incorporating Subsequent Exchange Act
Documents by Reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
II-2
<PAGE> 21
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Undertaking Regarding Indemnification.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
D. Undertaking Regarding Registration Statement Permitted by Rule 430A.
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable cause to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sunnyvale, State of California, on December 27, 1999.
PROXIM, INC.
By: /s/ Keith E. Glover
------------------------------------------
Keith E. Glover
Vice President of Finance and
Administration and Chief Financial Officer
II-4
<PAGE> 23
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Keith E. Glover his attorney-in-fact, with the
power of substitution, for him in any and all capacities, to sign any amendment
to this Registration Statement on Form S-3, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorney-in-fact full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney-in-fact, or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons on behalf of the
Registrant on December 27, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------ ----------------------------------------------------------
<S> <C>
/s/ DAVID C. KING President and Chief Executive Officer (Principal Executive
- ------------------------------------ Officer), Chairman of the Board of Directors
David C. King
/s/ KEITH E. GLOVER Vice President of Finance and Administration and Chief
- ------------------------------------ Financial Officer
Keith E. Glover
/s/ RAYMOND CHIN Director
- ------------------------------------
Raymond Chin
/s/ LESLIE G. DENEND Director
- ------------------------------------
Leslie G. Denend
/s/ GREGORY L. REYES Director
- ------------------------------------
Gregory L. Reyes
/s/ JEFFREY D. SAPER Director
- ------------------------------------
Jeffrey D. Saper
</TABLE>
II-5
<PAGE> 24
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
-----------
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants.
24.1 Power of Attorney (contained on Page II-5).
</TABLE>
- ---------------------
<PAGE> 1
EXHIBIT 5.1
December 27, 1999
Proxim, Inc.
510 DeGuigne Drive
Sunnyvale, CA 94086
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 to be filed by
you with the Securities and Exchange Commission on or about the date hereof (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of a total of up to 204,211 shares of your
Common Stock (the "Shares"). All of the Shares are issued and outstanding and
may be offered for sale for the benefit of the selling stockholders named in the
Registration Statement. The Shares are to be sold from time to time in the
over-the counter-market at prevailing prices or as otherwise described in the
Registration Statement. As your legal counsel, we have examined the proceedings
taken by you in connection with the sale of the Shares.
It is our opinion that the Shares are legally and validly issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever it appears in the
Registration Statement, including the Prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati,
Professional Corporation
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Proxim, Inc.:
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of Proxim, Inc. ("Proxim") of our report dated January 25,
1999 relating to financial statements, which report appears in the Annual Report
on Form 10-K of Proxim for the year ended December 31, 1998. We also consent to
the reference to our firm under the heading "Experts" in such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
San Jose, California
December 27, 1999
