0001341004-12-001321.txt : 20121023 0001341004-12-001321.hdr.sgml : 20121023 20121023165642 ACCESSION NUMBER: 0001341004-12-001321 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20121023 DATE AS OF CHANGE: 20121023 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DESHPANDE GURURAJ CENTRAL INDEX KEY: 0001106824 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: C/O GURURAJ DESHPANDE STREET 2: 10 ELIZEBETH DRIVE CITY: CHELMSFORD STATE: MA ZIP: 01824 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SYCAMORE NETWORKS INC CENTRAL INDEX KEY: 0001092367 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE & TELEGRAPH APPARATUS [3661] IRS NUMBER: 043410558 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-58421 FILM NUMBER: 121156905 BUSINESS ADDRESS: STREET 1: 220 MILL ROAD CITY: CHELMSFORD STATE: MA ZIP: 01824 BUSINESS PHONE: 9782502900 MAIL ADDRESS: STREET 1: 220 MILL ROAD CITY: CHELMSFORD STATE: MA ZIP: 01824 SC 13D/A 1 sc13da1.htm SCHEDULE 13D, AMENDMENT NO. 1 sc13da1.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*


SYCAMORE NETWORKS, INC.
(Name of Issuer)


Common Stock, Par Value $0.001 Per Share
(Title of Class of Securities)


871206405
(CUSIP Number)

Alan R. Cormier
c/o Sycamore Networks, Inc.
220 Mill Road
Chelmsford, Massachusetts 01824
(978) 250-2900
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)


October 23, 2012
(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [  ]

NOTE:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
 
 
 
 
CUSIP No. 871206405

(1)
 
NAME OF REPORTING PERSON: SPARTA GROUP MA LLC SERIES 4
 
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only):
 27-1035770
    
(2)
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) þ
(3)
 
SEC USE ONLY
 
(4)
 
SOURCE OF FUNDS
 
 OO
(5)
 
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
o
(6)
 
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
 
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
 
(7)
 
SOLE VOTING POWER
 
 -0- shares
 
(8)
 
SHARED VOTING POWER
 
 4,567,440 shares
 
(9)
 
SOLE DISPOSITIVE POWER
 
-0- shares
 
(10)
 
SHARED DISPOSITIVE POWER
 
4,567,440 shares
(11)
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 4,567,440 shares
(12)
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
þ
(13)
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 15.8%1
(14)
TYPE OF REPORTING PERSON
 
 OO
________________________

 
2
 

CUSIP No. 871206405

(1)
 
NAME OF REPORTING PERSON: GURURAJ DESHPANDE
 
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only):
 
    
(2)
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) þ
(3)
 
SEC USE ONLY
 
(4)
 
SOURCE OF FUNDS
 
OO
(5)
 
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
o
(6)
 
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Mr. Deshpande is a citizen of the United States of America
 
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
 
(7)
 
SOLE VOTING POWER
 
-0- shares
 
(8)
 
SHARED VOTING POWER
 
 4,567,440 shares
 
(9)
 
SOLE DISPOSITIVE POWER
 
 -0- shares
 
(10)
 
SHARED DISPOSITIVE POWER
 
4,567,440 shares
(11)
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 4,567,440
(12)
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
þ
(13)
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 15.8%2
(14)
TYPE OF REPORTING PERSON
 
 IN
________________________

 
3
 

CUSIP No. 871206405

(1)
 
NAME OF REPORTING PERSON: JAISHREE DESHPANDE
 
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only):
 
    
(2)
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) þ
(3)
 
SEC USE ONLY
 
(4)
 
SOURCE OF FUNDS
 
 OO
(5)
 
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
o
(6)
 
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 Mrs. Deshpande is a citizen of the United States of America
 
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
 
(7)
 
SOLE VOTING POWER
 
 3,840 shares
 
(8)
 
SHARED VOTING POWER
 
4,567,440 shares
 
(9)
 
SOLE DISPOSITIVE POWER
 
 3,840 shares
 
(10)
 
SHARED DISPOSITIVE POWER
 
 4,567,440 shares
(11)
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 4,571,280
(12)
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
”
(13)
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 15.8%3
(14)
TYPE OF REPORTING PERSON
 
 IN
________________________ 
3 Based on 28,882,093 shares outstanding as of October 4, 2012.

 
4
 

Item 1.  Security and Issuer

This Amendment No. 1 amends and restates in its entirety the statement on Schedule 13D, dated January 4, 2010 and filed with the Securities and Exchange Commission on January 14, 2010 (the “Schedule 13D”), by Sparta Group MA LLC Series 4 (“Sparta Series 4”), Gururaj Deshpande and Jaishree Deshpande, with respect to the shares of common stock, par value $0.001 per share (the “Common Stock”), of Sycamore Networks, Inc., a Delaware corporation with its principal executive offices located at 220 Mill Road, Chelmsford, MA 01824 (the “Company”).

Item 2. Identity and Background

 
a)
The Reporting Persons are Sparta Series 4, Mr. Gururaj Deshpande and Mrs. Jaishree Despande.

 
b)
The business or residence address of each of the Reporting Persons is set forth in Schedule I hereto and is incorporated by reference herein.

 
c)
The present principal occupation and related information concerning each Reporting Person is set forth in Schedule I and is incorporated by reference herein.

 
d)
None of the Reporting Persons has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) during the last five years.

 
e)
None of the Reporting Persons has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 
f)
Sparta Series 4 is a separate series of Sparta Group MA LLC, a Delaware limited liability company (the “LLC”).  Mr. Deshpande and Mrs. Deshpande are both citizens of the United States of America.

Item 3. Source and Amount of Funds or Other Consideration

On January 4, 2010, Mr. Deshpande, the Gururaj Deshpande Grantor Retained Annuity Trust (the “Annuity Trust”) and the Deshpande Irrevocable Trust transferred 2,485,690 shares, 1,788,000 shares, and 293,750 shares, respectively, of Common Stock (collectively, the “Acquired Shares”) to Sparta Series 4 (the “Sparta Series Transactions”) in exchange for Sparta Series 4 membership interests.

 
5
 

Item 4.  Purpose of Transaction

On October 23, 2012, the Company entered in an Asset Purchase and Sale Agreement (the “Asset Sale Agreement”) with Sunrise Acquisition Corp. (“Marlin”), an indirect subsidiary of Marlin Equity Partners, pursuant to which Marlin will acquire substantially all of the Company’s assets primarily related to or used in the Company’s Intelligent Bandwidth Management business (the “IBM Business”) and certain shared facilities and assets.  Pursuant to the Asset Sale Agreement, Marlin will pay $18.75 million in cash (subject to a working capital adjustment as provided in the Asset Sale Agreement) and will assume certain related liabilities.

In connection with the Asset Sale Agreement and the transactions contemplated thereby, Marlin entered into a Voting Agreement, dated October 23, 2012 (the “Sparta Voting Agreement”) with Sparta Series 4, of which Mr. Deshpande serves as manager, which in the aggregate beneficially owns 4,567,440 shares of Common Stock (the “Sparta Covered Shares”), representing approximately 15.8% of the Common Stock outstanding as of October 4, 2012.  The Annuity Trust, for which Mrs. Deshpande serves as trustee and which beneficially owns 3,840 shares of Common Stock representing less than one percent of the shares of Common Stock outstanding as of October 4, 2012 (together with the Sparta Covered Shares, the “Covered Shares”), also entered into a voting agreement with Marlin in substantially the same form as the Sparta Voting Agreement (the “Annuity Trust Voting Agreement” and together, with the Sparta Voting Agreement, the “Voting Agreements”).

Pursuant to the Voting Agreements, each of Sparta Series 4 and the Annuity Trust have agreed to vote the Covered Shares held by it in favor of the sale of the assets of the IBM Business, including the shared facilities and assets, pursuant to the Asset Sale Agreement and against any Acquisition Proposal (as defined in the Asset Sale Agreement) or any amendment of the Company’s certificate of incorporation or bylaws.  Sparta Series 4 and the Annuity Trust also agreed (i) not to solicit proxies in opposition to the approval of the Asset Sale Agreement and the transactions contemplated thereby, (ii) become a member of a “group” (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder) with respect to any solicitation of voting securities of the Company in support of an Acquisition Proposal, or (iii) engage in any conduct as to which the Company is prohibited by Section 4.9 of the Asset Sale Agreement.

Pursuant to the Voting Agreements and subject to certain exceptions, Sparta Series 4 and the Annuity Trust each agreed not to (i) transfer any of the Covered Shares held by it, or (ii) enter into any contract, option or other agreement with respect to any transfer of any or all of the Covered Shares held by it or any interest therein.  Sparta Series 4 and the Annuity Trust each also agreed not to, and will not permit, any entity under its control to, directly or indirectly, grant any proxies or powers of attorney, deposit any of the Covered Shares held by it into a voting trust or enter into a voting agreement with respect to the Covered Shares held by it, or enter into any agreement that conflicts with its obligations under the Voting Agreements.

The Voting Agreements terminate upon the earliest of (i) the Closing (as defined in the Asset Sale Agreement), (ii) the termination of the Asset Sale Agreement, (iii) a material amendment of the Asset Sale Agreement or (iv) the mutual written consent of the parties to the Voting Agreements.

 
6
 
 
The foregoing descriptions of the Asset Sale Agreement and Voting Agreements do not purport to be complete and are qualified in their entirety by reference to such agreements.  The Sparta Voting Agreement and Annuity Trust Voting Agreement are filed hereto as Exhibit A and B, respectively.  The Asset Sale Agreement, listed as Exhibit C hereto, is incorporated by reference to Exhibit 2.1 of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 23, 2012.

Item 5.  Interest in Securities of the Issuer

 
a)
Mr. and Mrs. Deshpande are Managers of the LLC and as a result, the Reporting Persons have shared power to dispose or to direct the disposition of the Acquired Shares held of record by Sparta Series 4, and thus may be deemed to be the beneficial owners of the Acquired Shares, which represent approximately 15.8% of the Common Stock outstanding based upon 28,882,093 shares of Common Stock outstanding as of October 4, 2012.  Additionally, Mrs. Deshpande is a trustee of the Annuity Trust and has sole power to dispose or to direct the disposition of, and thus may also be deemed to beneficially own, the 3,840 shares of Common Stock which the Annuity Trust continues to hold following the Sparta Series Transactions, which represent less than one percent of the shares of Common Stock outstanding as of October 4, 2012.

Neither Mr. Deshpande nor Sparta Series 4 has power to vote or direct the vote or dispose or direct the disposition of any shares of Common Stock held by the Annuity Trust, and each of Sparta Series 4 and Mr. Deshpande expressly disclaims beneficial ownership of any shares of Common Stock held by the Annuity Trust. All share ownership numbers and percentages for Sparta Series 4 and Mr. Deshpande set forth in this Schedule 13D/A exclude the shares of Common Stock held by the Annuity Trust.

Pursuant to Rule 13d-1(d), on February 14, 2000, each of Mr. Deshpande and Mrs. Deshpande filed a Schedule 13G with the Securities and Exchange Commission (the “SEC”) in respect of certain shares of Common Stock, and each such Schedule 13G was amended on February 13, 2002 (collectively, and as so amended, the “Schedule 13Gs”).  The shares of Common Stock transferred by Mr. Deshpande pursuant to the Sparta Series Transactions (as described in Item 3) are all of the shares of Common Stock previously reported on his Schedule 13G.  The shares of Common Stock transferred by the Annuity Trust pursuant to the Sparta Series Transactions (as described in Item 3) are shares of Common Stock previously reported on Mrs. Deshpande’s Schedule 13G.  Accordingly, this report also amends and supersedes the Schedule 13Gs with respect to the shares of Common Stock beneficially owned by Mr. and Mrs. Deshpande.

Each Reporting Person disclaims membership in any “group” (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder) with any other Reporting Person in respect of the Common Stock.
 
 
7
 
 
 
b)
Item 5(a) hereof is incorporated herein by reference.

 
c)
None of the Reporting Persons disposed of, or became the beneficial owner of, any shares of Common Stock during the past sixty days.

 
d)
To the best knowledge of the Reporting Persons, no person other than each of the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Stock beneficially owned by each of the respective Reporting Persons, except to the extent that, with respect to shares held in trust, the applicable trust, trustees or trust beneficiaries may be deemed to have the right to receive or direct the receipt of dividends from, or the proceeds from the sale of, shares of Common Stock so held.

 
e)
Not Applicable.

Item 6.  Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

In connection with the Asset Sale Agreement, Sparta Series 4 entered into the Sparta Voting Agreement and Annuity Trust entered into the Annuity Trust Voting Agreement, which are described in Item 4 above and incorporated herein by reference.  The Sparta Voting Agreement and Annuity Trust Voting Agreement are filed hereto as Exhibit A and B, respectively.

Item 7.  Material to Be filed as Exhibits

Exhibit Number
  
Document
 
Exhibit A
  
Voting Agreement, dated as of October 23, 2012, by and between Sunrise Acquisition Corp. and Sparta Group MA LLC Series 4
Exhibit B
  
Voting Agreement, dated as of October 23, 2012, by and between Sunrise Acquisition Corp. and the Gururaj Deshpande Grantor Retained Annuity Trust
Exhibit C
  
Asset Purchase and Sale Agreement, dated as of October 23, 2012, by and between Sunrise Acquisition Corp. and Sycamore Networks, Inc. – Incorporated by reference to Exhibit 2.1 of Sycamore Networks, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 23, 2012
Exhibit D
  
Joint Filing Agreement Pursuant to Rule 13d-1(k) – Incorporated by reference to Exhibit A of the Schedule 13D dated January 4, 2010 and filed by Sparta Group MA LLC Series 4, Gururaj Deshpande and Jaishree Deshpande with the Securities and Exchange Commission on January 14, 2010
 
 
8
 
 
Exhibit E
  
Power of Attorney of Mr. Deshpande, in his capacity as Manager of Sparta Series 4, appointing Servjeet S. Bhachu as Attorney-in-Fact – Incorporated by reference to Exhibit B of the Schedule 13D dated January 4, 2010 and filed by Sparta Group MA LLC Series 4, Gururaj Deshpande and Jaishree Deshpande with the Securities and Exchange Commission on January 14, 2010
Exhibit F
  
Power of Attorney of Mr. Deshpande, in his individual capacity, appointing Servjeet S. Bhachu as Attorney-in-Fact – Incorporated by reference to Exhibit C of the Schedule 13D dated January 4, 2010 and filed by Sparta Group MA LLC Series 4, Gururaj Deshpande and Jaishree Deshpande with the Securities and Exchange Commission on January 14, 2010
Exhibit G
  
Power of Attorney of Mrs. Deshpande, in her individual capacity and in her capacity as Manager of Sparta Series 4, appointing Servjeet S. Bhachu as Attorney-in-Fact – Incorporated by reference to Exhibit D of the Schedule 13D dated January 4, 2010 and filed by Sparta Group MA LLC Series 4, Gururaj Deshpande and Jaishree Deshpande with the Securities and Exchange Commission on January 14, 2010



 
9
 

SCHEDULE I

Residence or business address and present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted for each of the Reporting Persons:

 
 
 
Name
  
 
 
 
Residence or Business Address
  
Principal Occupation or Employment/ Principal Business and Address in which such employment is conducted
         
Sparta Group MA LLC Series 4
  
c/o Sparta Group MA LLC
92 Montvale Avenue, Suite 2500
Stoneham, MA 02180
  
Facilitating the investment and estate planning objectives of Mr. Deshpande and his spouse, Mrs. Deshpande
         
Gururaj Deshpande
  
c/o Sparta Group MA LLC
92 Montvale Avenue, Suite 2500
Stoneham, MA 02180
  
Chairman of the Board of Directors
Sycamore Networks, Inc.
220 Mill Road
Chelmsford, MA 01824
 
Manager and President,
Sparta Group MA LLC
92 Montvale Avenue, Suite 2500
Stoneham, MA 02180
         
Jaishree Deshpande
  
c/o Sparta Group MA LLC
92 Montvale Avenue, Suite 2500
Stoneham, MA 02180
  
Manager and Treasurer,
Sparta Group MA LLC
92 Montvale Avenue, Suite 2500
Stoneham, MA 02180


 
10
 

SIGNATURES
 
After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
 
Date:  October 23, 2012


   
/s/ Gururaj Deshpande *
   
Gururaj Deshpande, in his capacity
as Manager of Sparta Group MA LLC Series 4
     
     
     
   
/s/ Gururaj Deshpande *
   
Gururaj Deshpande
     
     
     
   
/s/ Jaishree Deshpande *
   
Jaishree Deshpande
     
     
 
*By  
/s/ Servjeet S. Bhachu    
   
Servjeet S. Bhachu
   
Attorney-in-Fact

* Mr. Servjeet S. Bhachu is signing as attorney-in-fact pursuant to powers of attorney dated January 13, 2010 granted by each Reporting Person, copies of which are incorporated by reference to the Schedule 13D dated January 4, 2010 and filed with the Securities and Exchange Commission on January 14, 2010.
 EX-99 2 exa.htm EXHIBIT A - VOTING AGREEMENT exa.htm
 

Exhibit A
 
EXECUTION VERSION
 
VOTING AGREEMENT
 
This Voting Agreement (this “Agreement”) is made and entered into as of October 23, 2012, by and between Sunrise Acquisition Corp., a Delaware corporation (“Buyer”), and the undersigned stockholder (“Holder”) of Sycamore Networks, Inc., a Delaware corporation (the “Company”).
 
RECITALS
 
Pursuant to an Asset Purchase and Sale Agreement, dated as of the date hereof (the “Purchase Agreement”), by and between Buyer and the Company, the Company has agreed to sell and Buyer has agreed to purchase from the Company the Acquired Assets, and, in partial consideration thereof, Buyer has agreed to assume the Assumed Liabilities, each as more specifically set forth in the Purchase Agreement. Concurrently with the execution and delivery of the Purchase Agreement and as a condition and inducement to Buyer entering into, and performing its obligations under, the Purchase Agreement, Buyer has requested that Holder enter into this Agreement. In order to induce Buyer to enter into the Purchase Agreement, Holder has agreed to enter into this Agreement with respect to the shares of common stock, par value $0.001 per share, of the Company (“Company Common Stock”) beneficially owned by Holder (within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) and set forth beneath Holder’s signature on the last page of this Agreement (the “Shares”); provided that Options beneficially owned by Holder shall not be considered “Shares” prior to their exercise, and shares of Company Common Stock issued upon exercise of Options shall be considered “Shares” upon their issuance. Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in the Purchase Agreement.
 
AGREEMENT
 
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
 
1. Agreement to Retain Shares.
 
a.      Transfer. During the period beginning on the date hereof and ending on the Expiration Date (as defined in Section 4 below), (1) except as contemplated by the Purchase Agreement, and except as provided in Section 1(b) below, Holder agrees not to, directly or indirectly, (i) sell, transfer, assign, gift, pledge, hypothecate, exchange or otherwise encumber or dispose of (including by merger, consolidation or otherwise by operation of law) (“Transfer”) the Shares, or (ii) enter into any contract, option or other agreement with respect to any Transfer of any or all of the Shares or any interest therein, and further acknowledges and agrees that any attempted Transfer of Shares or any interest therein in violation of this Section 1(a) shall be null and void, and (2) Holder agrees that Holder will not, and will not permit any entity under Holder’s control to, directly or indirectly, grant any proxies or powers of attorney, deposit any of such Holder’s Shares into a voting trust or enter into a voting agreement with respect to any of such Holder’s Shares, or enter into any agreement or arrangement providing for any of the actions described in this clause (2) which conflict with Holder’s obligations under this Agreement, except in the case of (1) or (2) to the extent permitted in writing by Buyer.
 
b.      Permitted Transfers. Section 1(a) shall not prohibit a Transfer of Shares by Holder, or on behalf of Holder, to (i) any family member or any trust for the benefit of Holder or a family member, (ii) any affiliate, stockholder, member or partner of any Holder which is an entity, (iii) any educational institution pursuant to an existing agreement or understanding between Holder, or on behalf of Holder, and such educational institution consistent with the past practice of Holder or (iv) any devisee or heir by operation of law or otherwise in the event of the death of Holder, in each case so long as the

 
 
 
 
assignee or transferee agrees to be bound by the terms of this Agreement and executes and delivers to the parties hereto a written consent, reasonably satisfactory in form and substance to Buyer, memorializing such agreement.
 
c.      New Shares. Holder agrees that any shares of Company Common Stock that Holder purchases or with respect to which Holder otherwise acquires record or beneficial ownership after the date of this Agreement and prior to the Expiration Date shall be subject to the terms and conditions of this Agreement to the same extent as if they constituted Shares on the date hereof and for all purposes shall be included in the definition of Shares.
 
d.      Covenant of the Holder. Holder agrees and covenants that (i) this Agreement and the obligations hereunder shall attach to the Shares and, notwithstanding any violation of the transfer restrictions contained in this Agreement, shall be binding upon any person or entity to which legal or beneficial ownership shall transfer, whether by operation of law or otherwise; and (ii) such Holder shall not request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any or all of the Shares, unless such transfer is made in compliance with this Agreement.
 
2. Agreement to Vote Shares.
 
a.      Subject to Section 2(c) and except to the extent waived in writing by Buyer, Holder agrees during the term of this Agreement to vote the Shares, and to cause any holder of record of the Shares to vote or execute a written consent or consents if stockholders of the Company are requested to vote their shares through the execution of an action by written consent in lieu of any annual or special meeting of stockholders of the Company: (i) in favor of the approval of the sale of the Acquired Assets pursuant to the Purchase Agreement and the transactions contemplated thereby, at every meeting (or in connection with any action by written consent) of the stockholders of the Company at which such matters are considered and at every adjournment or postponement thereof; and (ii) against (1) any Acquisition Proposal or (2) any amendment of the Company’s certificate of incorporation or bylaws (collectively, the “Covered Proposals”). This Agreement is intended to bind Holder as a stockholder of the Company only with respect to the Covered Proposals. Until the Expiration Date, Holder covenants and agrees not to enter into any agreement or understanding with any Person with respect to voting of its Shares on any Covered Proposal which conflicts with the terms of this Agreement.
 
b.      Holder further agrees that, until the Expiration Date, Holder will not, and will not permit any Person under Holder’s control to, (A) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Rule 14a-1 under the Exchange Act) in opposition to the approval of the sale of the Acquired Asssets pursuant to the Purchase Agreement and the transactions contemplated thereby, (B) become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with respect to any solicitation of voting securities of the Company in support of an Acquisition Proposal, or (C) engage in any conduct as to which the Company is prohibited by Section 4.9  of the Purchase Agreement, provided, however, that any such conduct by Holder, or by an Affiliate of Holder, in his or her capacity as an officer or director of the Company shall not constitute a breach of this Section 2.
 
c.      The Holder’s obligations under this Section 2 shall be suspended during any period beginning on the date (a “Suspension Date”) that the Board of Directors has failed to make or withdrawn, modified or changed the Board Recommendation in accordance with Section 4.8(b) or Section 4.9(e) of the Purchase Agreement and ending on the date following the relevant Suspension Date that the Board of Directors has recommended that the stockholders of the Company vote in favor of the approval of the sale of the Acquired Assets pursuant to the Purchase Agreement and the transactions contemplated by the Purchase Agreement (each period, a “Suspension Period”).

 
- 2 -
 

3. Representations and Warranties of Holder. Holder hereby represents and warrants to Buyer that:
 
a.     Holder (i) is the beneficial owner (as such term is defined in Rule 13d-3 under the Exchange Act) of the Shares, free and clear of all Encumbrances (other than those created by this Agreement) and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which Holder is a party relating to the pledge, disposition or voting of any of the Shares and there are no voting trusts or voting agreements with respect to the Shares.
 
b.     Holder does not beneficially own any shares of capital stock of the Company other than (i) the Shares and (ii) any options, warrants or other rights to acquire any additional shares of Company Common Stock or any security exercisable for or convertible into shares of Company Common Stock, set forth on the signature page of this Agreement (collectively, “Options”).
 
c.     Holder has the legal capacity, power and authority to execute and deliver, and perform its obligations under, this Agreement. This Agreement, assuming the due authorization, execution and delivery of this Agreement by Buyer, constitutes a valid and binding agreement of Holder, enforceable against Holder in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
 
d.     Neither the execution and delivery of this Agreement by Holder nor the consummation by Holder of the transactions contemplated hereby will conflict with or result in a material breach, or constitute a material default (with or without notice of lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or law applicable to Holder or to Holder’s property or assets.
 
e.     Other than any filing required on Schedule 13D or Schedule 13G or under Section 16 under the Exchange Act, no consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other Person on the part of Holder is required in connection with the execution and delivery of this Agreement.
 
4. Termination. This Agreement shall terminate upon the earliest to occur of (i) the Closing, (ii) the date on which the Purchase Agreement is terminated in accordance with its terms, (iii) a material amendment of the Purchase Agreement or (iv) the mutual written consent of the parties hereto (the earliest of such dates, the “Expiration Date”). Notwithstanding the foregoing, for purposes of this Section 4, an extension of the Outside Date set forth in Section 7.1(d) of the Purchase Agreement shall not be deemed to be a material amendment of the Purchase Agreement.
 
5. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary: (i) Holder makes no agreement or understanding herein in any capacity other than in Holder’s capacity as a beneficial owner of the Shares, (ii) nothing in this Agreement shall be construed to limit or affect the Holder’s rights and obligations as a director, officer, or other fiduciary of the Company, and (iii) Holder shall have no liability to Buyer or any of its Affiliates under this Agreement as a result of any action or inaction by Holder acting in his capacity as a director, officer, or other fiduciary of the Company.
 
6. Miscellaneous.
 
a.     Amendments and Waivers. Any term of this Agreement may be amended or waived only with the written consent of the parties or their respective successors and assigns. Any amendment or waiver effected in accordance with this Section 6(a) shall be binding upon the parties and their respective successors and assigns.
 
b.      Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or
 
 
- 3 -
 
 
conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Delaware. Each of the parties hereto (i) submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or any other federal or state court in the State of Delaware if it is determined that the Court of Chancery does not have jurisdiction over such action) in any action or proceeding arising out of or relating to this Agreement, (ii) agrees that all claims in respect of such action or proceeding may be heard and determined only in any such court, and (iii) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each of the parties hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of the other party with respect thereto. Any party may make service on the other parties by sending or delivering a copy of the process to the parties to be served at the address and in the manner provided for the giving of notices in Section 6(f). Nothing in this Section 6(b), however, shall affect the right of any party to serve legal process in any other manner permitted by law.
 
c.      WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF EITHER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.
 
d.      Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. This Agreement may be executed by facsimile or .PDF signature.
 
e.      Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
 
f.      Notices. All notices, requests, demands, claims and other communications hereunder shall be in writing. Any notice, request, demand, claim or other communication hereunder shall be deemed duly delivered one Business Day after it is sent by (i) a reputable courier service guaranteeing delivery within one Business Day, (ii) electronic mail (with receipt confirmed) or (iii) facsimile, provided electronic confirmation of successful transmission is received by the sending party and a confirmation copy is sent on the same day as the telecopy transmission by certified mail, return receipt requested, in each case to the intended recipient as set forth on respective signature pages hereto or at such other addresses, facsimile numbers or email addresses as either party may hereafter specify by written notice to the other party.
 
g.      Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties agree that the body making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
 
h.      Specific Performance. Each of the parties hereto recognizes and acknowledges that a breach of any covenants or agreements contained in this Agreement will cause Buyer

 
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to sustain damages for which they would not have an adequate remedy at law for money damages, and therefore each of the parties hereto agrees that in the event of any such breach Buyer shall be entitled to the remedy of specific performance of such covenants and agreements and injunctive and other equitable relief in addition to any other remedy to which they may be entitled, at law or in equity and Holder will not oppose the seeking of such relief on the basis that Buyer has an adequate remedy at law. Holder hereby agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with Buyer seeking or obtaining such equitable relief.
 
[Signature Page Follows]

 
- 5 -
 
 
The parties have caused this Agreement to be duly executed on the date first above written.
 

Buyer:
SUNRISE ACQUISITION CORP.
   
   
  By:   /s/ Doug Bayerd
   
Name: Doug Bayerd
    Title: Secretary

 
Address:
  
338 Pier Avenue
     
Hermosa Beach, CA 90254
       
 
Attention:
  
Nick Kaiser
       
 
Telephone:
  
(310) 364-0100
 
Facsimile:
  
(310) 364-0110
 
Email:
  
nkaiser@marlinequity.com
 
 

 
 
 
SIGNATURE PAGE TO VOTING AGREEMENT

 
 
 

Holder:
SPARTA GROUP MA LLC SERIES 4
 

  By:   /s/ Gururaj Deshpande
   
Name: Gururaj Deshpande
    Title: Manager

 
Address:
  
92 Montvale Avenue
     
Suite 2500
     
Stoneham, MA 01280
       
 
Attention:
  
Serge Bhachu
       
 
Telephone:
  
781-481-9055
 
Facsimile:
  
781-481-9155
 
Email:
  
Serge@spartagroupllc.com
 
 
Number of Shares of Company Common Stock Beneficially Owned as of the Date of this Agreement:   4,567,440  
       
Number of Options Beneficially Owned as of the Date of this Agreement:   0  
 
 

 SIGNATURE PAGE TO VOTING AGREEMENT

 
 
 
 
SPOUSAL CONSENT
 
The undersigned represents that the undersigned is the spouse of:
 
Name of Holder: Sparta Group MA LLC Series 4
 
and that the undersigned is familiar with the terms of the Voting Agreement (the “Agreement”), entered into as of October 23, 2012, by and among Sunrise Acquisition Corp, a Delaware corporation (“Buyer”), and the undersigned’s spouse. The undersigned hereby agrees that the interest of the undersigned’s spouse in all property which is the subject of such Agreement shall be irrevocably bound by the terms of such Agreement and by any amendment, modification, waiver or termination signed by the undersigned’s spouse. The undersigned further authorizes the undersigned’s spouse to amend, modify or terminate such Agreement, or waive any rights thereunder, and that each such amendment, modification, waiver or termination signed by the undersigned’s spouse shall be binding on the community property interest of undersigned in all property which is the subject of such Agreement and on the executors, administrators, heirs and assigns of the undersigned, each as fully as if the undersigned had signed such amendment, modification, waiver or termination.
 

Dated:  October 23, 2012
Signed:
/s/ Jaishree Deshpande
   
Jaishree Deshpande
     
   
Address: 
c/o Sparta Group
     
92 Montvale Avenue
     
Suite 2500
 
     Stoneham, MA 01280
    Attention:  Nirav Desai
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 EX-99 3 exb.htm EXHIBIT B - VOTING AGREEMENT exb.htm
 
Exhibit B
 
EXECUTION VERSION
 
VOTING AGREEMENT
 
This Voting Agreement (this “Agreement”) is made and entered into as of October 23, 2012, by and between Sunrise Acquisition Corp., a Delaware corporation (“Buyer”), and the undersigned stockholder (“Holder”) of Sycamore Networks, Inc., a Delaware corporation (the “Company”).
 
RECITALS
 
Pursuant to an Asset Purchase and Sale Agreement, dated as of the date hereof (the “Purchase Agreement”), by and between Buyer and the Company, the Company has agreed to sell and Buyer has agreed to purchase from the Company the Acquired Assets, and, in partial consideration thereof, Buyer has agreed to assume the Assumed Liabilities, each as more specifically set forth in the Purchase Agreement. Concurrently with the execution and delivery of the Purchase Agreement and as a condition and inducement to Buyer entering into, and performing its obligations under, the Purchase Agreement, Buyer has requested that Holder enter into this Agreement. In order to induce Buyer to enter into the Purchase Agreement, Holder has agreed to enter into this Agreement with respect to the shares of common stock, par value $0.001 per share, of the Company (“Company Common Stock”) beneficially owned by Holder (within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) and set forth beneath Holder’s signature on the last page of this Agreement (the “Shares”); provided that Options beneficially owned by Holder shall not be considered “Shares” prior to their exercise, and shares of Company Common Stock issued upon exercise of Options shall be considered “Shares” upon their issuance. Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in the Purchase Agreement.
 
AGREEMENT
 
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
 
1. Agreement to Retain Shares.
 
a.      Transfer. During the period beginning on the date hereof and ending on the Expiration Date (as defined in Section 4 below), (1) except as contemplated by the Purchase Agreement, and except as provided in Section 1(b) below, Holder agrees not to, directly or indirectly, (i) sell, transfer, assign, gift, pledge, hypothecate, exchange or otherwise encumber or dispose of (including by merger, consolidation or otherwise by operation of law) (“Transfer”) the Shares, or (ii) enter into any contract, option or other agreement with respect to any Transfer of any or all of the Shares or any interest therein, and further acknowledges and agrees that any attempted Transfer of Shares or any interest therein in violation of this Section 1(a) shall be null and void, and (2) Holder agrees that Holder will not, and will not permit any entity under Holder’s control to, directly or indirectly, grant any proxies or powers of attorney, deposit any of such Holder’s Shares into a voting trust or enter into a voting agreement with respect to any of such Holder’s Shares, or enter into any agreement or arrangement providing for any of the actions described in this clause (2) which conflict with Holder’s obligations under this Agreement, except in the case of (1) or (2) to the extent permitted in writing by Buyer.
 
b.      Permitted Transfers. Section 1(a) shall not prohibit a Transfer of Shares by Holder, or on behalf of Holder, to (i) any family member or any trust for the benefit of Holder or a family member, (ii) any affiliate, stockholder, member or partner of any Holder which is an entity, (iii) any educational institution pursuant to an existing agreement or understanding between Holder, or on behalf of Holder, and such educational institution consistent with the past practice of Holder or (iv) any devisee or heir by operation of law or otherwise in the event of the death of Holder, in each case so long as the

 
 
 
 
assignee or transferee agrees to be bound by the terms of this Agreement and executes and delivers to the parties hereto a written consent, reasonably satisfactory in form and substance to Buyer, memorializing such agreement.
 
c.      New Shares. Holder agrees that any shares of Company Common Stock that Holder purchases or with respect to which Holder otherwise acquires record or beneficial ownership after the date of this Agreement and prior to the Expiration Date shall be subject to the terms and conditions of this Agreement to the same extent as if they constituted Shares on the date hereof and for all purposes shall be included in the definition of Shares.
 
d.      Covenant of the Holder. Holder agrees and covenants that (i) this Agreement and the obligations hereunder shall attach to the Shares and, notwithstanding any violation of the transfer restrictions contained in this Agreement, shall be binding upon any person or entity to which legal or beneficial ownership shall transfer, whether by operation of law or otherwise; and (ii) such Holder shall not request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any or all of the Shares, unless such transfer is made in compliance with this Agreement.
 
2. Agreement to Vote Shares.
 
a.      Subject to Section 2(c) and except to the extent waived in writing by Buyer, Holder agrees during the term of this Agreement to vote the Shares, and to cause any holder of record of the Shares to vote or execute a written consent or consents if stockholders of the Company are requested to vote their shares through the execution of an action by written consent in lieu of any annual or special meeting of stockholders of the Company: (i) in favor of the approval of the sale of the Acquired Assets pursuant to the Purchase Agreement and the transactions contemplated thereby, at every meeting (or in connection with any action by written consent) of the stockholders of the Company at which such matters are considered and at every adjournment or postponement thereof; and (ii) against (1) any Acquisition Proposal or (2) any amendment of the Company’s certificate of incorporation or bylaws (collectively, the “Covered Proposals”). This Agreement is intended to bind Holder as a stockholder of the Company only with respect to the Covered Proposals. Until the Expiration Date, Holder covenants and agrees not to enter into any agreement or understanding with any Person with respect to voting of its Shares on any Covered Proposal which conflicts with the terms of this Agreement.
 
b.      Holder further agrees that, until the Expiration Date, Holder will not, and will not permit any Person under Holder’s control to, (A) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Rule 14a-1 under the Exchange Act) in opposition to the approval of the sale of the Acquired Asssets pursuant to the Purchase Agreement and the transactions contemplated thereby, (B) become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with respect to any solicitation of voting securities of the Company in support of an Acquisition Proposal, or (C) engage in any conduct as to which the Company is prohibited by Section 4.9  of the Purchase Agreement, provided, however, that any such conduct by Holder, or by an Affiliate of Holder, in his or her capacity as an officer or director of the Company shall not constitute a breach of this Section 2.
 
c.      The Holder’s obligations under this Section 2 shall be suspended during any period beginning on the date (a “Suspension Date”) that the Board of Directors has failed to make or withdrawn, modified or changed the Board Recommendation in accordance with Section 4.8(b) or Section 4.9(e) of the Purchase Agreement and ending on the date following the relevant Suspension Date that the Board of Directors has recommended that the stockholders of the Company vote in favor of the approval of the sale of the Acquired Assets pursuant to the Purchase Agreement and the transactions contemplated by the Purchase Agreement (each period, a “Suspension Period”).

 
- 2 -
 

3. Representations and Warranties of Holder. Holder hereby represents and warrants to Buyer that:
 
a.     Holder (i) is the beneficial owner (as such term is defined in Rule 13d-3 under the Exchange Act) of the Shares, free and clear of all Encumbrances (other than those created by this Agreement) and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which Holder is a party relating to the pledge, disposition or voting of any of the Shares and there are no voting trusts or voting agreements with respect to the Shares.
 
b.     Holder does not beneficially own any shares of capital stock of the Company other than (i) the Shares and (ii) any options, warrants or other rights to acquire any additional shares of Company Common Stock or any security exercisable for or convertible into shares of Company Common Stock, set forth on the signature page of this Agreement (collectively, “Options”).
 
c.     Holder has the legal capacity, power and authority to execute and deliver, and perform its obligations under, this Agreement. This Agreement, assuming the due authorization, execution and delivery of this Agreement by Buyer, constitutes a valid and binding agreement of Holder, enforceable against Holder in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
 
d.     Neither the execution and delivery of this Agreement by Holder nor the consummation by Holder of the transactions contemplated hereby will conflict with or result in a material breach, or constitute a material default (with or without notice of lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or law applicable to Holder or to Holder’s property or assets.
 
e.     Other than any filing required on Schedule 13D or Schedule 13G or under Section 16 under the Exchange Act, no consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other Person on the part of Holder is required in connection with the execution and delivery of this Agreement.
 
4. Termination. This Agreement shall terminate upon the earliest to occur of (i) the Closing, (ii) the date on which the Purchase Agreement is terminated in accordance with its terms, (iii) a material amendment of the Purchase Agreement or (iv) the mutual written consent of the parties hereto (the earliest of such dates, the “Expiration Date”). Notwithstanding the foregoing, for purposes of this Section 4, an extension of the Outside Date set forth in Section 7.1(d) of the Purchase Agreement shall not be deemed to be a material amendment of the Purchase Agreement.
 
5. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary: (i) Holder makes no agreement or understanding herein in any capacity other than in Holder’s capacity as a beneficial owner of the Shares, (ii) nothing in this Agreement shall be construed to limit or affect the Holder’s rights and obligations as a director, officer, or other fiduciary of the Company, and (iii) Holder shall have no liability to Buyer or any of its Affiliates under this Agreement as a result of any action or inaction by Holder acting in his capacity as a director, officer, or other fiduciary of the Company.
 
6. Miscellaneous.
 
a.     Amendments and Waivers. Any term of this Agreement may be amended or waived only with the written consent of the parties or their respective successors and assigns. Any amendment or waiver effected in accordance with this Section 6(a) shall be binding upon the parties and their respective successors and assigns.
 
b.      Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or
 
 
- 3 -
 
 
conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Delaware. Each of the parties hereto (i) submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or any other federal or state court in the State of Delaware if it is determined that the Court of Chancery does not have jurisdiction over such action) in any action or proceeding arising out of or relating to this Agreement, (ii) agrees that all claims in respect of such action or proceeding may be heard and determined only in any such court, and (iii) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each of the parties hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of the other party with respect thereto. Any party may make service on the other parties by sending or delivering a copy of the process to the parties to be served at the address and in the manner provided for the giving of notices in Section 6(f). Nothing in this Section 6(b), however, shall affect the right of any party to serve legal process in any other manner permitted by law.
 
c.      WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF EITHER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.
 
d.      Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. This Agreement may be executed by facsimile or .PDF signature.
 
e.      Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
 
f.      Notices. All notices, requests, demands, claims and other communications hereunder shall be in writing. Any notice, request, demand, claim or other communication hereunder shall be deemed duly delivered one Business Day after it is sent by (i) a reputable courier service guaranteeing delivery within one Business Day, (ii) electronic mail (with receipt confirmed) or (iii) facsimile, provided electronic confirmation of successful transmission is received by the sending party and a confirmation copy is sent on the same day as the telecopy transmission by certified mail, return receipt requested, in each case to the intended recipient as set forth on respective signature pages hereto or at such other addresses, facsimile numbers or email addresses as either party may hereafter specify by written notice to the other party.
 
g.      Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties agree that the body making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
 
h.      Specific Performance. Each of the parties hereto recognizes and acknowledges that a breach of any covenants or agreements contained in this Agreement will cause Buyer

 
- 4 -
 

to sustain damages for which they would not have an adequate remedy at law for money damages, and therefore each of the parties hereto agrees that in the event of any such breach Buyer shall be entitled to the remedy of specific performance of such covenants and agreements and injunctive and other equitable relief in addition to any other remedy to which they may be entitled, at law or in equity and Holder will not oppose the seeking of such relief on the basis that Buyer has an adequate remedy at law. Holder hereby agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with Buyer seeking or obtaining such equitable relief.
 
[Signature Page Follows]

 
- 5 -
 
 
The parties have caused this Agreement to be duly executed on the date first above written.
 

Buyer:
SUNRISE ACQUISITION CORP.
   
   
  By:   /s/ Doug Bayerd
   
Name: Doug Bayerd
    Title: Secretary

 
Address:
  
338 Pier Avenue
      Hermosa Beach, CA 90254
       
 
Attention:
  
Nick Kaiser
       
 
Telephone:
  
(310) 364-0100
 
Facsimile:
  
(310) 364-0110
 
Email:
  
nkaiser@marlinequity.com
 
SIGNATURE PAGE TO VOTING AGREEMENT

 
 
 

Holder:
GURURAJ DESHPANDE GRANTOR RETAINED ANNUITY TRUST
 
(Record Holder: Jaishree Deshpande TR UA 4/20/99 by Gururaj Deshpande)
 

  By:   /s/ Jaishree Deshpande
   
Name: Jaishree Deshpande
    Title: Trustee

 
Address:
  
c/o Sparta Group
     
92 Montvale Avenue
     
Suite 2500
     
Stoneham, MA 01280
       
 
Attention:
  
Nirav Desai
       
 
Telephone:
  
781-481-9055
 
Facsimile:
  
781-481-9155
 
Email:
  
Nirav@spartagroupllc.com
 
 
Number of Shares of Company Common Stock Beneficially Owned as of the Date of this Agreement:    3,840  
       
Number of Options Beneficially Owned as of the Date of this Agreement:   0  
 
 

 SIGNATURE PAGE TO VOTING AGREEMENT

 
 
 
 
SPOUSAL CONSENT
 
The undersigned represents that the undersigned is the spouse of:
 
Name of Holder: Gururaj Deshpande Grantor Retained Annuity Trust
(Record Holder: Jaishree Deshpande TR UA 4/20/99 by Gururaj Deshpande)
 
and that the undersigned is familiar with the terms of the Voting Agreement (the “Agreement”), entered into as of October 23, 2012, by and among Sunrise Acquisition Corp, a Delaware corporation (“Buyer”), and the undersigned’s spouse. The undersigned hereby agrees that the interest of the undersigned’s spouse in all property which is the subject of such Agreement shall be irrevocably bound by the terms of such Agreement and by any amendment, modification, waiver or termination signed by the undersigned’s spouse. The undersigned further authorizes the undersigned’s spouse to amend, modify or terminate such Agreement, or waive any rights thereunder, and that each such amendment, modification, waiver or termination signed by the undersigned’s spouse shall be binding on the community property interest of undersigned in all property which is the subject of such Agreement and on the executors, administrators, heirs and assigns of the undersigned, each as fully as if the undersigned had signed such amendment, modification, waiver or termination.
 

Dated:  October 23, 2012
Signed:
/s/ Gururaj Deshpande
   
Gururaj Deshpande
   
Address: 
c/o Sparta Group
     
92 Montvale Avenue
     
Suite 2500
 
     Stoneham, MA 01280
    Attention:  Serge Bhachu