EXHIBIT 2.2
VOTING AGREEMENT
AGREEMENT, dated as of June 5, 2000 (this "Agreement"), by and
among Sycamore Networks, Inc., a Delaware corporation (the "Buyer"),
Sirocco Systems, Inc., a Delaware corporation (the "Company") and each of
the parties identified on the signature pages hereto (individually, a
"Stockholder" and collectively, the "Stockholders").
WHEREAS, the Company, the Buyer and Tropical Acquisition
Corporation, a Delaware corporation and a wholly owned subsidiary of the
Buyer ("Sub"), have, contemporaneously with the execution and delivery of
this Agreement, entered into that certain Agreement and Plan of Merger
dated as of June 5, 2000 (the "Merger Agreement"), which provides, among
other things, that Sub shall be merged with and into the Company (the
"Merger"), with the Company surviving the Merger as a wholly owned
subsidiary of the Buyer; and
WHEREAS, as of the date hereof, the Stockholders own of record
and beneficially the shares of common stock, par value $0.001 per share, of
the Company (the "Common Stock"), Series A Preferred Stock, par value $.01
per share, of the Company (the "Series A Stock"), Series B Preferred Stock,
par value $.01 per share, of the Company (the "Series B Stock"), Series C
Preferred Stock, par value $.01 per share, of the Company (the "Series C
Stock"), and Series D Preferred Stock, par value $.01 per share of the
Company (the "Series D Stock", and together with the Series A Stock, the
Series B Stock and the Series C Stock, the "Preferred Stock"; the Preferred
Stock, together with the Common Stock, being referred to herein as the
"Company Stock"), set forth opposite their respective names on Schedule A
hereto, and desire to enter into this Agreement with respect to such shares
of Company Stock (with respect to each Stockholder, the "Covered Shares");
and
WHEREAS, as an essential condition and inducement to the Buyer
to enter into the Merger Agreement and in consideration therefor, the
undersigned Stockholders have agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and the
mutual covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE I
AGREEMENT TO VOTE OR ACT BY WRITTEN CONSENT; OTHER ACTIONS
Section 1.1 Agreement to Vote. Each Stockholder hereby
irrevocably agrees (i) to vote, in person or by proxy, or execute a written
consent in a form reasonably satisfactory to the Buyer in respect of all of
the Covered Shares, in favor of approval and adoption of the Merger
Agreement, the Merger and the transactions contemplated thereby (ii) to
execute and deliver to the Company or the Buyer such additional consents,
waivers and agreements as may be reasonably requested by the Company or the
Buyer in order to facilitate the consummation of the Merger in accordance
with the terms of the Merger Agreement and (iii) to approve any payment or
benefit to any individual who is a "disqualified individual" (within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code")) with respect to the Company to the extent necessary so that
no such payments or benefits are treated as "excess parachute payments"
(within the meaning of the Section 280G of the Code).
Section 1.2 Agreement Not to Make Election Regarding
Liquidation. Each Stockholder who or which owns Preferred Stock hereby
agrees with respect to all of the Covered Shares comprising Preferred Stock
not to elect not to treat the Merger and the transactions contemplated by
the Merger Agreement as a liquidation, dissolution or winding up of the
Company for purposes of Section 4.2(A) of the Seventh Amended and Restated
Certificate of Incorporation of the Company. Each such Stockholder agrees
to execute and deliver to the Company or the Buyer such additional
consents, waivers or agreements as may be reasonably requested by the
Company or the Buyer to effectuate the agreement described in the preceding
sentence.
Section 1.3 Request not to Redeem. Each Stockholder who or
which owns Series A Stock, Series B Stock and/or Series C Stock hereby
irrevocably requests the Company not to redeem Series A Stock, Series B
Stock and/or Series C Stock held by such Stockholder pursuant to Section
4.2D of the Seventh Amended and Restated Certificate of Incorporation of
the Company as a result of the Merger. Each such Stockholder agrees not to
revoke the agreement described in the preceding sentence at any time before
the Merger Agreement shall have been terminated in accordance with its
terms. Each such Stockholder agrees to execute and deliver to the Company
or the Buyer such additional consents, waivers or agreements as may be
reasonably requested by the Company or the Buyer to effectuate the request
described in this Section 1.3.
Section 1.4 Acceptance of Merger Consideration in Full
Satisfaction of Rights. Each Stockholder who or which owns Preferred Stock
hereby agrees with respect to all of the Covered Shares that upon receipt
of the consideration to be issued in the Merger for the Covered Shares
pursuant to the Merger Agreement, subject to any rights in and to the
Escrow Shares (as defined in the Merger Agreement), such Stockholder will
have no other claim against the Company or the Buyer, or any of their
respective officers, directors, employees, agents or advisors, for any
amount owing to it (a) in such Stockholder's capacity as a stockholder of
the Company, or, after the Merger, as a stockholder of the Buyer in respect
of such Stockholder's rights as a stockholder of the Company or (b)
pursuant to the Seventh Amended and Restated Certificate of Incorporation
of the Company or the DGCL (except for any rights to appraisal provided
pursuant to Section 262 of the DGCL) or (c) relating to or in connection
with the Merger, the Merger Agreement or the transactions contemplated
thereby (a "Claim"). Each Stockholder hereby waives, effective as of the
Effective Time, all Claims it may have, whether known or unknown by such
Stockholder on the date hereof.
Section 1.5 Termination of Agreements. Each Stockholder hereby
agrees to the termination, immediately prior to the Effective Time, of the
following agreements (i) The Third Amended and Restated Stockholders'
Agreement, dated as of October 29, 1999, (ii) the Common Stock and Series A
Preferred Stock Purchase Agreement, dated August 7, 1998, (iii) the Common
Stock and Series B Preferred Stock Purchase Agreement, dated January 8,
1999, (iv) the Common Stock and Series C Preferred Stock Purchase
Agreement, dated April 14, 1999, (v) the Series D Preferred Stock Purchase
Agreement, dated October 29, 1999, and (vi) the Amended and Restated
Registration Rights Agreement dated October 29, 1999. Each Stockholder
agrees to execute and deliver to the Company or the Buyer such additional
consents, waivers or agreements as may be reasonably requested by the
Company or the Buyer to effectuate the agreement described in the preceding
sentence.
ARTICLE II
RESTRICTIONS ON TRANSFER
Each Stockholder hereby covenants and agrees that such
Stockholder will not, prior to the termination of this Agreement, either
directly or indirectly, offer or otherwise agree to sell, assign, pledge,
hypothecate, transfer, exchange or otherwise dispose of (collectively, a
"Disposition") any Covered Shares or options to purchase Company Stock
("Options") or any other securities or rights convertible into or
exchangeable for shares of Company Stock, owned either directly or
indirectly by such Stockholder or with respect to which such Stockholder
has the power of Disposition, whether now or hereafter acquired, without
the prior written consent of the Buyer, other than a Disposition to any
partner or member of any Stockholder or any subsidiary or partnership or
other business entity under common control with such Stockholder, provided
such a transferee shall agree in writing to be bound by the terms of this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each Stockholder hereby severally represents and warrants
(solely with respect to such Stockholder) to, and covenants and agrees
with, the Buyer as follows:
Section 3.1 Valid and Binding Agreement. This Agreement has
been duly executed and delivered by such Stockholder and constitutes a
valid and binding obligation of the Stockholder, enforceable in accordance
with its terms.
Section 3.2 No Conflict. The execution, delivery and
performance of this Agreement by such Stockholder does not and will not
result in any breach of, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or result in
the creation of any lien or encumbrance on any of the Covered Shares (other
than pursuant to the terms hereof). The Stockholder has not entered into,
and shall not enter into, any agreement, and has not granted, and shall not
grant any proxy or power of attorney, in any such case which is
inconsistent with this Agreement.
ARTICLE IV
TERMINATION
This Agreement shall terminate automatically upon the earliest
to occur of (a) the Effective Time (as defined in the Merger Agreement) or
(b) the termination of the Merger Agreement in accordance with its terms,
provided, however, that if the Merger Agreement is terminated by the Buyer
pursuant to Section 9.1(d) thereof and any fee payable pursuant to Section
9.3 of the Merger Agreement is to be paid in respect of such termination,
this Agreement shall terminate upon the date on which such a fee is paid.
Upon such termination of this Agreement, no party shall have any obligation
or liability hereunder; provided that if such termination is pursuant to
clause (b) immediately above, such termination shall not relieve any party
from liability for any breach of this Agreement prior to such termination.
ARTICLE V
MISCELLANEOUS
Section 5.1 Enforcement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with its specified terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this
Agreement and to specific performance of the terms and provisions hereof in
addition to any other remedy to which they are entitled at law or in
equity.
Section 5.2 Expenses. All fees and expenses incurred by any
party hereto shall be borne by the party incurring such fees and expenses.
Section 5.3 Parties in Interest. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their
respective heirs, legal representatives and assigns. If any Stockholder
shall at any time hereafter acquire ownership of, or voting power with
respect to, any additional shares of Company Stock in any manner, whether
by the exercise of any Options or any securities or rights convertible into
or exchangeable for shares of Company Stock, by operation of law or
otherwise, such shares shall be deemed to be Covered Shares and shall be
subject to this Agreement. Without limiting the foregoing, each Stockholder
specifically agrees that the obligations of such Stockholder hereunder
shall not be terminated by operation of law, whether by death or incapacity
of the Stockholder or otherwise.
Section 5.4 Entire Agreement. This Agreement constitutes the
entire agreement among the Buyer and the Stockholders with respect to the
subject matter hereof, and supersedes all prior agreements and
understandings, both written and oral, among the Buyer and the Stockholders
with respect to the subject matter hereof.
Section 5.5 Captions and Counterparts. The captions in this
Agreement are for convenience only and shall not be considered a part of or
affect the construction or interpretation of any provision of this
Agreement. This Agreement may be executed in several counterparts, each of
which shall constitute one in the same instrument.
Section 5.6 Amendment. Neither this Agreement nor any provision
hereof may be amended, supplemented or terminated except by an instrument
in writing signed by the parties hereto, and no provision hereof may be
waived except by an instrument in writing signed by the waiving party. The
waiver by any party hereto of a breach of any provision hereof shall not
operate or be construed as a waiver of any prior or subsequent breach of
the same or any other provision hereof.
Section 5.7 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of
this Agreement remain as originally contemplated to the fullest extent
possible.
Section 5.8 Notices. All notices and other communications given
or made pursuant hereto shall be in writing and shall be deemed to have
been duly given or made and shall be effective upon receipt, if delivered
personally, upon receipt of a transmission confirmation if sent by
facsimile (with a confirming copy sent by overnight courier) and on the
next business day if sent by Federal Express, United Parcel Service,
Express Mail or other reputable overnight courier to the parties at the
following addresses (or at such other address for a party as shall be
specified by notice):
If to a Stockholder:
At the address set forth opposite such
Stockholder's name on Schedule A hereto
With a copy to:
Day, Berry & Howard LLP
CityPlace I
185 Asylum Street
Hartford, Connecticut 06103
Attention: Frank J. Marco, Esquire
Fax No.: (860) 275-0343
With a copy to:
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
Attention: Gregory E. Moore, Esquire
Fax No.: (617) 951-7050
If to the Buyer:
Sycamore Networks, Inc.
10 Elizabeth Drive
Chelmsford, Massachusetts 01824
Attention: General Counsel
Fax No.: (978) 256-3434
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Beacon Street, 31st Floor
Boston, Massachusetts 02108
Attention: Margaret A. Brown, Esquire
Fax: (617) 573-4822
Section 5.9 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the internal laws (and not the law of
conflicts) of the State of Delaware.
Section 5.10Definitions. Capitalized terms used and not defined
herein shall have the respective meanings ascribed thereto in the Merger
Agreement.
Section 5.11Obligations of Stockholders. The obligations of the
Stockholders hereunder shall be "several" and not "joint" or "joint and
several." Without limiting the generality of the foregoing, under no
circumstances will any Stockholder have any liability or obligation with
respect to any misrepresentation or breach of covenant of any other
Stockholder.
Section 5.12Interpretation. The parties have participated
jointly in the negotiation of this Agreement. In the event that an
ambiguity or question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by the parties, and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue
of the authorship of the provisions of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
SYCAMORE NETWORKS, INC.
By: /s/ Jonathan Reeves
-------------------------------------------------
Name: Jonathan Reeves
Title: President and Chief Executive Officer
SIROCCO SYSTEMS, INC.
By: /s/ Jonathan Reeves
-------------------------------------------------
Name: Jonathan Reeves
Title: President & CEO
STOCKHOLDERS:
------------
/s/ Jonathan Reeves
-------------------------------------------------
Jonathan Reeves
/s/ Thomas Shea
-------------------------------------------------
Thomas Shea
BESSEMER VENTURE INVESTORS L.P.
By: Deer IV & Co. LLC, General Partner
By: /s/ Robert H. Buescher
-------------------------------------------------
Name: Robert H. Buescher
Title: Manager
BESSEMER VENTURE PARTNERS IV L.P.
By: Deer IV & Co. LLC, General Partner
By: /s/ Robert H. Buescher
-------------------------------------------------
Name: Robert H. Buescher
Title: Manager
BESSEC VENTURE IV L.P.
By: Deer IV & Co. LLC, General Partner
By: /s/ Robert H. Buescher
-------------------------------------------------
Name: Robert H. Buescher
Title: Manager
GREYLOCK IX LIMITED PARTNERSHIP
By: Greylock IX GP Limited Partnership,
its general partner
By: /s/ Roger L. Evans
-------------------------------------------------
Name: Roger L. Evans
Title: General Partner
WEISS, PECK & GREER VENTURE
ASSOCIATES V, L.L.C.
By: /s/ Barry F. Eggars
-------------------------------------------------
Name: Barry F. Eggars
Title: General Partner
WEISS, PECK & GREER VENTURE
ASSOCIATES V-A, L.L.C.
By: /s/ Barry F. Eggars
-------------------------------------------------
Name: Barry F. Eggars
Title: General Partner
WEISS, PECK & GREER VENTURE
ASSOCIATES V CAYMAN, L.L.C
By: /s/ Barry F. Eggars
-------------------------------------------------
Name: Barry F. Eggars
Title: General Partner
SCHEDULE A
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------------
NUMBER OF NUMBER OF NUMBER OF NUMBER OF NUMBER OF
SHARES OF SHARES OF SHARES OF SHARES OF SHARES OF
COMMON SERIES A SERIES B SERIES C SERIES D
NAME OF SHAREHOLDER ADDRESS OF SHAREHOLDER STOCK STOCK STOCK STOCK STOCK
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Jonathan Reeves 95 Barnes Road 3,339,285 0 0 0 0
Wallingford, CT 06492
---------------------------------------------------------------------------------------------------------------------------
Thomas Shea 95 Barnes Road 2,464,105 0 0 0 0
Wallingford, CT 06492
---------------------------------------------------------------------------------------------------------------------------
Bessemer Venture Investors, L.P. 1400 Old Country Road 483,740 6,000 8,333 0 0
Suite 407
Westbury, NY 11590
Attn: Robert H. Buescher
---------------------------------------------------------------------------------------------------------------------------
1400 Old Country Road,
Suite 407
Bessemer Venture Partners IV L.P. Westbury, NY 11590 4,041,296 33,000 45,833 409,091 813,008
Attn: Robert H. Buescher
---------------------------------------------------------------------------------------------------------------------------
1400 Old Country Road,
Suite 407
Bessec Ventures IV L.P. Westbury, NY 11590 2,613,591 21,000 29,167 272,727 542,006
Attn: Robert H. Buescher
---------------------------------------------------------------------------------------------------------------------------
c/o Greylock Management
Greylock IX Limited Partnership One Federal Street 6,136,365 0 0 1,818,182 1,355,014
Boston, MA 02110-2065
2882 Sand Hill Road
---------------------------------------------------------------------------------------------------------------------------
Weiss, Peck & Greer Venture Menlo Park, CA 94025 0 0 0 0 1,783,415
Associates V, L.L.C. Attn: Barry Eggers
2882 Sand Hill Road
---------------------------------------------------------------------------------------------------------------------------
Weiss, Peck & Greer Venture Menlo Park, CA 94025 0 0 0 0 15,175
Associates V-A, L.L.C. Attn: Barry Eggers
2882 Sand Hill Road
---------------------------------------------------------------------------------------------------------------------------
Weiss, Peck & Greer Venture Menlo Park, CA 94025 0 0 0 0 369,431
Associates V Cayman, L.L.C. Attn: Barry Eggers
---------------------------------------------------------------------------------------------------------------------------
Total shares subject to Voting 19,078,382 60,000 83,333 2,500,000 4,878,049
Agreement
---------------------------------------------------------------------------------------------------------------------------
Total shares outstanding 30,710,303 60,000 85,000 2,654,548 5,370,047
---------------------------------------------------------------------------------------------------------------------------
Percentage of total shares 62.12% 100.00% 98.04% 94.18% 90.84%
outstanding that are subject to the
Voting Agreement
---------------------------------------------------------------------------------------------------------------------------
</TABLE>
