Exhibit 99.2
ESCROW AGREEMENT
ESCROW AGREEMENT dated as of [ ], by and among Sycamore Networks, Inc., a
Delaware corporation (the "Buyer"), G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, solely in his capacity
as stockholder representative (the "Stockholder Representative") of the
stockholders of Sirocco Systems, Inc., a Delaware corporation (the "Company"),
immediately prior to the Effective Time, all of whom or which are listed on
Schedule I hereto (the "Company Stockholders"), and [ ], as escrow agent
(the "Escrow Agent").
The Buyer, Tropical Acquisition Corporation, a Delaware corporation and a
wholly owned subsidiary of the Buyer ("Sub"), and the Company are parties to
that certain Agreement and Plan of Merger dated as of June 5, 2000 (the "Merger
Agreement"), which provides, upon the terms and subject to the conditions set
forth therein, for the merger (the "Merger") of Sub with and into the Company,
with the Company surviving the Merger as a wholly owned subsidiary of the
Buyer.
The Closing under the Merger Agreement is taking place concurrently with the
execution and delivery of this Escrow Agreement.
This Escrow Agreement and the escrow arrangements set forth herein are part
of the terms and conditions of the Merger and have been entered into for the
purpose of carrying the Merger into effect. Capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Merger Agreement. The Escrow Agent's rights and duties are defined solely
by this Escrow Agreement.
In consideration of the foregoing and the agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Buyer, the Stockholder Representative and the
Escrow Agent hereby agree as follows:
1. Establishment of Escrow.
(a) Schedule I hereto sets forth the name and address of each Company
Stockholder, the number of Escrow Shares initially deposited in escrow on such
Company Stockholder's behalf, and such Company Stockholder's Pro Rata Interest
(as defined in Section (c) below). Concurrently with the execution and delivery
of this Escrow Agreement, (i) the Buyer has delivered to the Escrow Agent a
stock certificate representing the aggregate number 2,837,868 of Escrow Shares,
determined as provided in Section 2.1(b) of the Merger Agreement. The Escrow
Agent hereby acknowledges receipt of such certificate representing the Escrow
Shares. The Escrow Agent shall hold the Escrow Shares, and any dividends or
other distributions on the Escrow Shares and other securities or property into
which the Escrow Shares may be converted or reclassified into or exchanged for,
in escrow, in its name or the name of its nominee, in accordance with this
Escrow Agreement. The Escrow Shares and any sum dividends, distributions, other
securities or property and any other assets received and held in Escrow by the
Escrow Agent hereunder in accordance with the terms hereof are referred to
herein as the "Escrow Materials." The Escrow Materials shall not be subject to
any lien, attachment, trustee process or any other judicial process of any
creditor of any party hereto or any Company Stockholder.
(b) The Escrow Agent shall have no responsibility for the genuineness,
validity, market value, title or sufficiency for any intended purpose of the
Escrow Materials. The Escrow Agent shall be under no obligation to preserve,
protect or exercise rights in the Escrow Shares, and shall be responsible only
for reasonable measures to maintain the physical safekeeping thereof, and
otherwise to perform and observe such duties on its part as are expressly set
forth in this Escrow Agreement.
(c) Each Company Stockholder's Pro Rata Interest as set forth on Schedule I
shall be equal to a fraction (expressed as a percentage), the numerator of
which shall be the number of Escrow Shares initially deposited in escrow on
such Company Stockholder's behalf, and the denominator of which shall be the
total number of Escrow Shares initially deposited in escrow on behalf of all
Company Stockholders. Any cash, securities or
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other property distributed with respect to, or in exchange for, Escrow Shares
shall be allocable to the respective Company Stockholders, and any Escrow
Shares or Escrow Funds (as defined herein) released or distributed to the
respective Company Stockholders pursuant to this Escrow Agreement shall be
released or distributed, on the basis of the Company Stockholders' respective
Pro Rata Interests.
(d) The Escrow Materials shall not be assignable or transferable, other than
by operation of law or as otherwise provided herein. Notice of any such
assignment or transfer by operation of law (including the name and address of
the assignees or transferees and the nature of the assignment or transfer)
shall be given to the Escrow Agent and the Buyer, and upon receipt of such
notice the Escrow Agent shall make appropriate adjustments to its records.
2. Dividends and Distributions on Escrow Shares.
(a) Until distributed pursuant Section 8, all cash dividends and other cash
distributions, if any, on the Escrow Shares (such cash dividends and other cash
distributions are referred to herein as the "Escrow Funds") shall be invested
by the Escrow Agent at, and pursuant to, the written direction of the
Stockholder Representative in Eligible Investments (as defined below), and the
Escrow Agent shall not be responsible or liable for any loss accruing from any
investment made in accordance herewith and the Escrow Agent shall hold any
noncash dividends and other noncash distributions on the Escrow Shares which
shall be deemed to constitute Escrow Shares for all purposes of this Escrow
Agreement. All earnings received from the investment of the Escrow Funds shall
be credited to, and shall become a part of, the Escrow Funds (and any losses on
such investments shall be debited to the Escrow Funds). The Escrow Agent shall
have no liability for any investment losses, including any losses on any
investment required to be liquidated prior to maturity in order to make a
payment required hereunder.
(b) "Eligible Investments" shall mean (i) obligations issued or guaranteed
by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged in
support thereof); (ii) obligations (including certificates of deposit and
banker's acceptances) of any domestic commercial bank having capital and
surplus in excess of $500,000,000; (iii) repurchase obligations for underlying
securities of the type described in clause (i); or (iv) shares of money market
funds at least 95% of the assets of which constitute obligations of the type
described in clause (i) above. No investment shall have a term of more than 90
days. If otherwise qualified, obligations of the Escrow Agent shall qualify as
Eligible Investments.
3. Tax Treatment and Allocation. Dividends and other distributions on the
Escrow Materials and earnings thereon will be allocable for tax purposes to the
Company Stockholders in proportion to their respective Pro Rata Interests and
the Company Stockholders will include such allocations in their gross income
for federal, state and local income tax purposes and pay any tax resulting
therefrom. The Stockholder Representative shall use commercially reasonable
efforts to provide the Escrow Agent with a certified tax identification number
for each Company Stockholder by arranging for execution and return of a
Form W-9 (or Form W-8, in the case of non-U.S. persons) to the Escrow Agent,
unless such information has been previously provided to the Escrow Agent, prior
to the date on which any such allocation is made. The Escrow Agent will be
permitted to withhold and pay to the appropriate taxing authority any amount of
the Escrow Funds and earnings thereon that the Escrow Agent in its
determination believes is required to be withheld and paid to the applicable
taxing authority.
4. Tax Indemnification. Each Company Stockholder: (i) assumes any and all
obligations imposed now or hereafter by any applicable tax law with respect to
any payment or distribution of Escrow Funds, or performance of other activities
under this Escrow Agreement with respect to the Escrow Shares to the extent of
the Pro Rata Interest of such Company Stockholder therein; and (ii) shall
indemnify and hold the Escrow Agent harmless from any liability or obligation
on account of taxes, assessments, additions for late payment, interest,
penalties, expenses and other governmental charges that may be assessed or
asserted against the Escrow Agent in connection with or relating to any payment
made or other activities performed under this Escrow Agreement
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with respect to the Escrow Shares (other than as a result of the Escrow Agent's
gross negligence or intentional misconduct) to the extent of the Pro Rata
Interest of such Company Stockholder therein, including without limitation any
liability for the withholding or deduction of (or the failure to withhold or
deduct) the same, including costs and expenses (including reasonable legal fees
and expenses), interest and penalties.
5. Voting of Escrow Shares. The Buyer shall furnish to the Stockholder
Representative, who shall use reasonable efforts to forward to each Company
Stockholder, copies of all notices, proxies and proxy materials in connection
with each meeting of the holders of Buyer Common Stock. The Escrow Agent shall
vote or cause to be voted Escrow Shares, to the extent of each such Company
Stockholder's Pro Rata Interest, as directed in writing by the Stockholder
Representative on behalf of each Company Stockholder. The Stockholder
Representative shall use reasonable efforts to give such directions to the
Escrow Agent to the extent so instructed in writing by the respective Company
Stockholders. In the absence of written instructions from the Stockholder
Representative on behalf of a Company Stockholder, the Escrow Agent shall not
vote Escrow Shares to the extent of such Company Stockholder's Pro Rata
Interest therein.
6. Claims Against Escrow Shares.
(a) At any time or times prior to the earlier to occur of (i) 5:00 p.m.
Boston time on the first anniversary of the Effective Time or (ii) the date of
the issuance of the first independent audit report on the Buyer's financial
statements after the Effective Time hereof which financial statements include
the financial results of the Company (the "Escrow Release Date"), the Buyer may
make claims against the Escrow Materials for amounts due for indemnification
under Section 8.2 of the Merger Agreement by delivering to the Stockholder
Representative (with a copy to the Escrow Agent) a copy of the notice (the
"Section 8.5 Notice") given by the Buyer, the Surviving Corporation, or their
respective directors, officers, employees, agents, affiliates or assigns
(collectively, the "Buyer Indemnified Persons") pursuant to Section 8.5 of the
Merger Agreement. If the Stockholder Representative does not dispute such claim
in accordance with Section 7, such claim shall be deemed to have been
acknowledged and, subject to Section 6(b), to be payable from the Escrow
Materials in the full amount of the Loss (as defined in the Merger Agreement)
set forth in the copy of the Section 8.5 Notice (the "Stated Loss") and the
Escrow Agent shall pay such amount of the Stated Loss to Buyer as soon as
practicable after expiration of the 20 business day dispute period provided for
in Section 7. The Escrow Agent shall effect such payment of Escrow Materials to
the Buyer by releasing Escrow Materials with a value equal to the amount of the
Stated Loss to Buyer; with respect to Escrow Materials, released which are
Escrow Shares, the Escrow Agent shall surrender the certificate(s) representing
the Escrow Shares to the Buyer's transfer agent for cancellation with
instructions to issue a new certificate to the Escrow Agent for the number of
Escrow Shares remaining after giving effect to the amount of the Stated Loss.
If the amount of the claim exceeds the aggregate value of the Escrow Materials,
the Escrow Agent shall have no liability or responsibility for any deficiency.
The value per share of the Escrow Shares for purposes of this Escrow Agreement
shall be $84.5705 (the "Agreed Share Value"). Any payment to be made to the
Buyer by the Escrow Agent in Escrow Shares shall be calculated by dividing the
amount of the Stated Loss to which such claim relates by the Agreed Share
Value. Any payment to the Buyer in Escrow Shares shall reduce the number of
Escrow Shares held in escrow on behalf of each Company Stockholder in
proportion to such Company Stockholder's Pro Rata Interest. All claims paid out
of the Escrow Shares shall be rounded to the nearest whole share. For purposes
of this Escrow Agreement, the fair market value of any securities or property
(other than Buyer Common Stock which shall be valued at the Agreed Share Value)
which constitute Escrow Materials hereunder shall be reasonably determined by
the Buyer in good faith.
(b) Notwithstanding the foregoing or any other provision of this Escrow
Agreement, no claim shall be paid out of the Escrow Materials until the
aggregate amount of all such claims (i) to the extent deemed to have been
acknowledged to be payable from the Escrow Materials as provided in Section
6(a) and/or (ii) to the extent resolved or settled as contemplated by Section
7, exceeds $1,000,000, after which, the entire amount of all such claims
(including such initial $1,000,000) shall be paid out of the Escrow Materials.
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7. Disputed Claims.
(a) The Stockholder Representative may dispute any claim (a "Claim Dispute")
noticed by the Buyer pursuant to Section 6 by giving written notice thereof
(the "Response Notice") to the Escrow Agent (with a copy to the Buyer), which
Response Notice must be given to the Escrow Agent within 20 business days after
the date the Escrow Agent receives the copy of the Section 8.5 Notice to the
Escrow Agent. In the event of a Claim Dispute, the Escrow Agent shall allocate
a portion of the Escrow Materials equal to the amount of the Stated Loss set
forth in the copy of the Section 8.5 Notice (the "Set Aside Amount") calculated
using the Agreed Share Value. No distribution of Escrow Materials allocated to
a Set Aside Amount shall be made by the Escrow Agent to the Buyer or to the
Company Stockholders until either (a) such Claim Dispute has been resolved as
evidenced by a written notice executed by the Buyer and the Stockholder
Representative instructing the Escrow Agent as to the distribution of the
Escrow Materials allocated to such Set Aside Amount or portion thereof or
(b) the Escrow Agent receives a copy of the written decision of an arbitrator
settling the Claim Dispute pursuant to paragraph (b) below.
(b) In the event of a Claim Dispute, the Buyer and the Stockholder
Representative shall first make a good faith effort to settle the matter
themselves. If they do not settle the matter within forty-five (45) days of the
delivery of the Response Notice, either the Buyer or the Stockholder
Representative shall have the right, by delivery of written notice thereof (the
"Arbitration Notice") to the other party, to submit the matter to binding
arbitration in Boston, Massachusetts. All matters so submitted to arbitration
shall be settled by three (except as otherwise provided below) arbitrators in
accordance with the Commercial Arbitration Rules then in effect of the American
Arbitration Association (the "AAA Rules"). The Stockholder Representative and
the Buyer shall each designate one arbitrator within twenty (20) days of the
delivery of the Arbitration Notice. If either the Stockholder Representative or
the Buyer fails to timely designate an arbitrator, the matter shall be resolved
by the one arbitrator timely designated. The designated arbitrators shall
mutually agree upon and designate a third arbitrator; provided, however, that
failing such agreement within thirty (30) days of delivery of the Arbitration
Notice, the third arbitrator shall be appointed in accordance with the AAA
Rules. The Company Stockholders and the Buyer shall be responsible for the
payment of the fees and expenses of their respectively designated arbitrators
and shall bear equally the fees and expenses of the third arbitrator. The
Stockholder Representative and the Buyer shall cause the arbitrators to decide
the matter to be arbitrated pursuant hereto within sixty (60) days after the
appointment of the last arbitrator. The arbitrators' decision shall relate
solely to whether the Buyer is entitled to receive Escrow Materials pursuant to
the applicable terms of the Merger Agreement and this Escrow Agreement and, if
so, the amount of such Escrow Materials. In no event will the arbitrators'
decision include any award for punitive damages. The final decision of the
majority of the arbitrators shall be furnished to the Stockholder
Representative, the Buyer and the Escrow Agent in writing and shall constitute
a conclusive determination of the matter in question, binding upon the
Stockholder Representative, the Company Stockholders, the Buyer and the Escrow
Agent and shall not be contested by any of them. Such decision may be used in a
court of law only for the purpose of seeking enforcement of the arbitrators'
award. Except as otherwise set forth herein, all costs and expenses of any
proceeding described in this paragraph 7(b) shall be borne by the losing party
in any such proceeding (with costs and expenses to be assessed and assigned by
the arbitrator or arbitrators in the event of an arbitration in which there is
no losing party) and, if the losing party is the Stockholder Representative,
such costs and expenses shall constitute Losses incurred or suffered by the
Buyer within the meaning of Section 8.2 of the Merger Agreement; provided,
however, that if the value of the remaining Escrow Materials is less than the
amount of such Losses, the Company Stockholders shall forthwith pay to the
Buyer in cash the full amount of such excess. Notwithstanding the foregoing
provision of this Section 7(b), it is agreed that if a Set Aside Amount is less
than $1,000,000, any arbitration with respect to such Set Aside Amount shall be
conducted by a single arbitrator (rather than three arbitrators) appointed
by mutual agreement of the Stockholder Representative and the Buyer or, failing
such agreement within twenty (20) days of delivery of the Arbitration Notice,
appointed in accordance with the AAA Rules.
8. Termination
On the Escrow Release Date, the Escrow Agent shall deliver the remaining
Escrow Materials to the Company Stockholders according to their respective Pro
Rata Interests, provided that the Escrow Agent shall
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retain and continue to hold in escrow all Escrow Materials then allocated to
Set Aside Amounts until such time or times as all or any portion of such
allocated Escrow Materials may be distributed pursuant to Section 7 and any
such distribution shall be pro rata based on the Company Stockholders'
respective Pro Rata Interests. The Escrow Agent shall effect the delivery of
Escrow Materials to the Company Stockholders by delivering the certificate(s)
representing the Escrow Shares to the transfer agent for cancellation with
instructions to return a certificate for retained shares and issue new
certificates in the names of the various Company Stockholders. The Escrow Agent
shall effect the delivery of Escrow Funds to the Company Stockholders through
the means agreed to by the parties hereto prior to the time of any such
delivery. Company Stockholders will not receive fractional shares upon delivery
of the remaining Escrow Shares. Any fractional shares which the Company
Stockholders would otherwise be entitled to receive upon delivery of the
remaining Escrow Shares shall be aggregated into whole shares and delivered by
the Escrow Agent to the Buyer (the "Redelivered Shares"). The Buyer will then
deliver to each Company Stockholder an amount in cash equal to such Company
Stockholder's pro rata interest in the Redelivered Shares, valuing the
Redelivered Shares for this purpose at the Average Buyer Common Stock Price.
This Escrow Agreement shall terminate upon the later of the Escrow Release Date
or the distribution of all the Escrow Materials in accordance with this Escrow
Agreement, provided that Sections 4, 9 and 10 shall survive termination of this
Escrow Agreement.
9. The Escrow Agent.
(a) Notwithstanding anything herein to the contrary, the Escrow Agent shall
promptly dispose of all or any part of the Escrow Shares as directed by a
writing jointly signed by the Stockholder Representative and the Buyer. The
reasonable fees and expenses of the Escrow Agent in connection with the
preparation of this Escrow Agreement and its execution and performance of this
Escrow Agreement as set forth on Schedule II hereto shall be borne by the
Buyer. The Escrow Agent shall not be liable for any act or failure to act under
this Escrow Agreement, including any and all claims made against the Escrow
Agent as a result of its holding the Escrow Materials in its own name, except
for its own gross negligence or willful misconduct. The Escrow Agent shall not
be liable for, and the Buyer and the Company Stockholders shall, jointly and
severally, indemnify and hold harmless the Escrow Agent against any losses or
claims (including reasonable out-of-pocket expenses and attorney fees) arising
out of any action taken or omitted hereunder and reasonable costs of
investigation and counsel fees and expenses which may be imposed on the Escrow
Agent or reasonably incurred by it in connection with its acceptance of this
appointment or performance of its duties hereunder, except in the event such
loss or claim arises out of an action or omission of the Escrow Agent which
constitutes gross negligence or willful misconduct. The Escrow Agent may
decline to act and shall not be liable for failure to act if in reasonable
doubt as to its duties under this Escrow Agreement, but only for so long as
reasonably necessary for the Escrow Agent to take reasonable measures
(including the measures described under Section 9(c) hereof) to determine such
duties. The Escrow Agent may act upon any instrument or signature (including
wire transfer instructions) reasonably believed by it to be genuine and may
assume that any person purporting to give any notice or instruction hereunder,
reasonably believed by it to be authorized, has been duly authorized to do so.
The Escrow Agent's duties shall be determined only with reference to this
Escrow Agreement and applicable law and the Escrow Agent is not charged with
knowledge of or any duties or responsibilities in connection with any other
document or agreement, including without limitation, the Merger Agreement
(other than defined terms in the Merger Agreement that are not otherwise
defined herein).
(b) The Escrow Agent shall have the right at any time to resign hereunder by
giving written notice of its resignation to the parties hereto, at the
addresses set forth herein or at such other address as the parties shall
provide, at least thirty days prior to the date specified for such resignation
to take effect. In such event the Buyer shall appoint a successor escrow agent
acceptable to the Stockholder Representative (which acceptance may not be
unreasonably withheld) by the date of the expiration of such thirty-day period.
If no successor escrow agent is appointed as provided herein, the Escrow Agent
may apply to a court of competent jurisdiction for appointment of a successor
escrow agent. From and after the date of the appointment of a successor escrow
agent in accordance with the terms hereof, such successor escrow agent shall be
deemed the "Escrow Agent" for all purposes hereunder.
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(c) In the event that the Escrow Agent should at any time be (i) confronted
with inconsistent or conflicting claims or demands by the other parties hereto
or (ii) unsure of its duties hereunder, the Escrow Agent shall have the right
to inter plead the parties in any court of competent jurisdiction and request
that such court determine the respective rights of the parties with respect to
this Escrow Agreement.
(d) The Escrow Agent may execute any of its powers or responsibilities
hereunder and exercise any rights hereunder, either directly or by or through
its agents or attorneys. Nothing in this Escrow Agreement shall be deemed to
impose upon the Escrow Agent any duty to qualify to do business in any
jurisdiction other than The Commonwealth of Massachusetts or to act as
fiduciary.
(e) Notwithstanding anything to the contrary, the Escrow Agent is not
required to release or distribute Escrow Materials sooner than two (2) business
days after the Escrow Agent has received the requisite notices or paperwork in
good form, or passage of the applicable claims period or release date, as the
case may be.
(f) Notwithstanding anything herein to the contrary, at any time that the
Escrow Agent is authorized or directed or otherwise required to make a
disbursement or distribution of the Escrow Materials, the Escrow Agent may
refrain from making such disbursement or distribution, without liability, if
and to the extent that there are any fees or expenses then due to the Escrow
Agent by the party to which such disbursement or distribution is to be made
pursuant hereto. Upon receipt of payment for such fees or expenses, the Escrow
Agent shall promptly make such disbursement or distribution.
10. Stockholder Representative.
The Stockholder Representative represents and warrants to the Buyer and the
Escrow Agent that he is authorized to execute this Escrow Agreement for and on
behalf of the Company Stockholders and to take any action deemed by him
appropriate or necessary to carry out the provisions of, and to determine the
rights of the Company Stockholders under, the Merger Agreement and this Escrow
Agreement. The Stockholder Representative shall serve as the agent of the
Company Stockholders for all purposes related to this Escrow Agreement,
including without limitation service of process upon the Company Stockholders
until such time as the Stockholder Representative shall notify the parties
hereto as to any successor Stockholder Representative. By execution of this
Escrow Agreement, the Stockholder Representative accepts and agrees to use his
commercially reasonable efforts to discharge the duties and responsibilities of
the Stockholder Representative set forth in this Escrow Agreement without
compensation for his services hereunder. The Buyer and the Escrow Agent shall
be entitled to rely upon the authorization and designation of the Stockholder
Representative under this Section 10 and shall be fully protected in dealing
with the Stockholder Representative, and shall have no duty to inquire into the
authority of any person reasonably believed by any of them to be the
Stockholder Representative.
11. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed given when delivered in
person, by overnight courier, by facsimile transmission (with receipt confirmed
by telephone or by automatic transmission report) or five business days after
being sent by registered or certified mail (postage prepaid, return receipt
requested), as follows, provided, however, that with respect to the Escrow
Agent, notices or other communications shall be deemed given only when actually
received by the Escrow Agent.
(a) if to the Buyer, to:
Sycamore Networks, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to the Stockholder Representative:
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
[ ]
[ ]
[ ]
with a copy to each of:
Ropes & ▇▇▇▇
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
City Place I
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Escrow Agent:
[ ]
[ ]
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Any party may by notice given in accordance with this section to the other
parties designate another address or person for receipt of notices hereunder.
12. Governing Law. This Escrow Agreement shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of The
Commonwealth of Massachusetts, and shall inure to the benefit of and be binding
upon the successors, assigns, heirs and personal stockholder representatives of
the parties hereto.
13. Counterparts. This Escrow Agreement may be executed in two or more
counterparts, all of which documents shall be considered one and the same
document.
14. Additional Terms.
(a) The Escrow Agent shall have no more or less responsibility or liability
on account of any action or omission of any book-entry depository, securities
intermediary or other subescrow agent employed by the Escrow Agent than any
such book-entry depository, securities intermediary or other subescrow agent
has to the Escrow Agent, except to the extent that such action or omission of
any book-entry depository, securities intermediary or other subescrow agent was
caused by their own gross negligence, bad faith or wilful misconduct, and
provided that any such book-entry depository, securities intermediary or other
subescrow agent employed by the Escrow Agent shall, as a condition to the
Escrow Agent utilizing such person or entity, be similarly liable to the Escrow
Agent for their own gross negligence, bad faith or wilful misconduct.
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(b) The Escrow Agent shall not be responsible for delays or failures in
performance resulting from acts beyond its control. Such acts shall include but
not be limited to acts of God, strikes, lockouts, riots, acts of war,
epidemics, governmental regulations superimposed after the fact, fire,
communication line failures, computer viruses, power failures, earthquakes or
other disasters.
(c) This Escrow Agreement shall be binding upon the respective parties
hereto and their heirs, executors, successors and permitted assigns.
(d) This Escrow Agreement may not be altered or modified without the express
written consent of the parties hereto. No course of conduct shall constitute a
waiver of any of the terms and conditions of this Escrow Agreement, unless such
waiver is specified in writing, and then only to the extent so specified. A
waiver of any terms and conditions of this Escrow Agreement on one occasion
shall not constitute a waiver of the other terms of this Escrow Agreement, or
of such terms and conditions on any other occasion.
(e) The parties agree that this Escrow Agreement and all documents relating
thereto, including, without limitation, (i) consents, waivers and modifications
which may hereafter be executed, and (ii) certificates and other information
previously or hereafter furnished, may be reproduced by any photographic,
photostatic, microfilm, optical disk, micro-card, miniature photographic or
other similar process and shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
(f) It is understood and agreed that should any dispute arise with respect
to the delivery, ownership, right of possession, and/or disposition of the
Escrow Materials, or should any claim be made upon the Escrow Agent or the
Escrow Materials by a third party, the Escrow Agent upon receipt of notice of
such dispute or claim is authorized and shall be entitled (at its sole option
and election) to retain in its possession without liability to anyone, all or
any of said Escrow Materials until such dispute shall have been settled either
by the mutual written agreement of the parties involved or by a final order,
decree or judgment of a court in the United States of America, the time for
perfection of an appeal of such order, decree or judgment having expired. The
Escrow Agent may, but shall be under no duty whatsoever to, institute or defend
any legal proceedings which relate to the Escrow Materials.
8
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of
the date first above written.
Sycamore Networks, Inc.
By: _________________________________
Name:
Title:
Stockholder Representative:
-------------------------------------
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, solely in his
capacity as Stockholder
Representative
The Escrow Agent:
[ ]
By: _________________________________
Authorized Signatory
Name:
Title:
9