Exhibit 10.1
E
XECUTION
V
ERSION
F ORM OF V OTING A GREEMENT
This VOTING AGREEMENT (this “
Agreement ”) is entered into as of October 12,
2009, by and between Cisco Systems, Inc., a California corporation
(“ Parent ”), and the undersigned stockholder
(“ Stockholder ”) of Starent Networks, Corp., a
Delaware corporation (the “ Company ”). Terms
not otherwise defined herein shall have the respective meanings
ascribed to them in the Merger Agreement (as defined
below).
R ECITALS
A. The execution and delivery of
this Agreement by Stockholder is a material inducement to the
willingness of Parent to enter into that certain Agreement and Plan
of Merger, dated as of the date hereof (the “ Merger
Agreement ”), by and among Parent, Barcelona Acquisition
Corp., a Delaware corporation and wholly-owned subsidiary of Parent
(“ Sub ”) and the Company, pursuant to which Sub
will merge with and into the Company (the “ Merger
”), and the Company will survive the Merger and become a
wholly-owned subsidiary of Parent.
B. Stockholder understands and
acknowledges that the Company and Parent are entitled to rely on
(i) the truth and accuracy of Stockholder’s
representations contained herein and (ii) Stockholder’s
performance of the obligations set forth herein.
NOW, THEREFORE, in consideration of
the premises and the covenants and agreements set forth in the
Merger Agreement and in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1. Restrictions on Shares
.
(a) Except for sales of Shares
during the period beginning on the date hereof and ending on the
5th Business Day after the date hereof pursuant to the terms of any
trading plan adopted pursuant to Rule 10b5-1 under the Exchange Act
prior to the date of this Agreement, Stockholder shall not,
directly or indirectly, (i) transfer (except as may be
specifically required by court order or by operation of law), grant
an option with respect to, sell, exchange, pledge or otherwise
dispose of, or encumber, the Shares (as such term is defined in
Section 4 below) or any New Shares (as such term is defined in
Section 1(d) below), (ii) enter into a swap or similar
transaction that transfers the economic consequences of ownership
of the Shares or any New Shares, or (iii) make any offer or
enter into any agreement providing for any of the foregoing, at any
time prior to the Expiration Date; provided , however
, that nothing contained herein will be deemed to restrict the
ability of Stockholder to exercise, prior to the Expiration Date,
any Company Options held by Stockholder; provided ,
further , that Stockholder may transfer Shares and New
Shares (w) to any member of Stockholder’s immediate
family, (x) to a trust for the benefit of Stockholder or any
member of Stockholder’s immediate family for estate planning
purposes, (y) to a charitable entity qualified as a 501(c)(3)
organization under the Code or (z) in connection with or for
the purpose of personal tax-planning; provided ,
further , that any such transfer shall be permitted only if,
as a precondition to such transfer, the transferee agrees in
writing to be bound by all of the terms of this Agreement. As used
herein, the term “ Expiration Date ” shall mean
the earlier of (i) the first Business Day following the date
on which the Company Stockholder Approval shall have been obtained,
and (ii) the date and time of the termination of the Merger
Agreement in compliance with its terms.
(b) Except pursuant to the terms of
this Agreement, Stockholder shall not, directly or indirectly,
grant any proxies or powers of attorney with respect to any of the
Shares, deposit any of the Shares into a voting trust, or enter
into a voting agreement or similar arrangement or commitment with
respect to any of the Shares.
(c) Stockholder shall not, directly
or indirectly, take any action that would make any representation
or warranty contained herein untrue or incorrect or impair the
ability of Stockholder to perform its obligations under this
Agreement or, in its capacity as a stockholder of the Company,
preventing or delaying the consummation of
any of the transactions contemplated hereby,
provided that (i) to the extent Stockholder is a director or
officer of the Company, such Stockholder may, in his or her
capacity as a director or officer of the Company, take such actions
as may be permitted under Section 5.2 and Section 5.3 of
the Merger Agreement and (ii) as a stockholder the Stockholder
may negotiate a voting agreement on substantially similar terms
with a third party that has made an Acquisition Proposal but solely
in circumstances where the Company is permitted to enter into
discussions with such third party pursuant to Section 5.3 of
the Merger Agreement and may agree to enter into such a voting
agreement but solely upon a termination of the Merger Agreement in
compliance with its terms.
(d) Any shares of Company Common
Stock or other securities of the Company that Stockholder purchases
or with respect to which Stockholder otherwise acquires beneficial
ownership (as defined in Rule 13d-3 under the Exchange Act) after
the date of this Agreement and prior to the Expiration Date,
including pursuant to the exercise of options or warrants to
purchase Shares (collectively, the “ New Shares
”) shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted
Shares.
2. Agreement to Vote Shares .
Prior to the Expiration Date, at every meeting of the stockholders
of the Company called with respect to any of the following, and at
every adjournment or postponement thereof, and on every action or
approval by written consent or resolution of the stockholders of
the Company with respect to any of the following, Stockholder shall
vote, to the extent not voted by the person(s) appointed under the
Proxy (as defined in Section 3 below) the Shares and any New
Shares in favor of adoption of the Merger Agreement and any matter
that could reasonably be expected to facilitate the Merger
(including any adjournment of any meeting of stockholders in order
to solicit additional proxies in favor of adoption of the Merger
Agreement) and against any Acquisition Proposal and any other
matter that could reasonably be expected to impede, interfere with,
delay, postpone or adversely affect the Merger or any of the
transactions contemplated by the Merger Agreement. Parent
acknowledges that the voting covenant, set forth, herein and in the
Proxy shall not be effective for any other purpose and Stockholder
retains the right to vote in any manner on all other
matters.
3. Irrevocable Proxy .
Concurrently with the execution and delivery of this Agreement,
Stockholder shall deliver to Parent a duly executed proxy in the
form attached hereto as Exhibit A (the “ Proxy
”), which proxy is coupled with an interest, and, until the
Expiration Date, shall be irrevocable to the fullest extent
permitted by law, with respect to each and every meeting of
stockholders of the Company or action or approval by written
resolution or consent of stockholders of the Company with respect
to the matters contemplated by Section 2 covering the total
number of Shares and New Shares in respect of which Stockholder is
entitled to vote at any such meeting or in connection with any such
written consent. Upon the execution of this Agreement by
Stockholder, (i) Stockholder hereby revokes any and all prior
proxies (other than the Proxy) given by Stockholder with respect to
the subject matter contemplated by Section 2, and
(ii) Stockholder shall not grant any subsequent proxies with
respect to such subject matter, or enter into any agreement or
understanding with any Person to vote or give instructions with
respect to the Shares and New Shares in any manner inconsistent
with the terms of Section 2, until after the Expiration
Date.
4. Representations, Warranties
and Covenants of Stockholder . Stockholder hereby represents,
warrants and covenants to Parent as follows:
(a) Stockholder is the beneficial or
record owner of, or exercises voting power over, that number of
shares of Company Common Stock set forth on the signature page
hereto (all such shares owned beneficially or of record by
Stockholder, or over which Stockholder exercises voting power, on
the date hereof, collectively, the “ Shares ”).
The Shares constitute Stockholder’s entire interest in the
outstanding shares of Company Common Stock and Stockholder does not
hold any other outstanding shares of capital stock of the Company.
No person not a signatory to this Agreement has a beneficial
interest in or a right to acquire or vote any of the Shares (other
than, (i) if Stockholder is a partnership, the rights and
interest of persons and entities that own partnership interests in
Stockholder under the partnership agreement governing Stockholder
and applicable partnership law or (ii) if Stockholder is a
married individual and resides in a State with community property
laws, the community property interest of his or her spouse to the
extent applicable under such community property law, in which case
such spouse has executed a spousal consent hereto). The Shares are
and will be at all times up until the
2
Expiration Date free and clear of any security
interests, liens, claims, pledges, options, rights of first
refusal, co-sale rights, agreements, limitations on
Stockholder’s voting rights, charges and other encumbrances
of any nature that would materially and adversely affect the
ability of Stockholder to perform his, her or its obligations under
this Agreement. Stockholder’s principal residence or place of
business is set forth on the signature page hereto.
(b) Stockholder has all requisite
power, capacity and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Stockholder and the consummation by
Stockholder of the transactions contemplated hereby have been duly
authorized by all necessary action, if any, on the part of
Stockholder. This Agreement has been duly executed and delivered by
Stockholder and, assuming the due authorization, execution and
delivery of this Agreement by Parent, constitutes a valid and
binding obligation of Stockholder, enforceable against Stockholder
in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors’ rights and remedies
generally and to general principles of equity.
(c) The execution and delivery of
this Agreement does not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will
not, conflict with, result in a breach or violation of or default
(with or without notice or lapse of time or both) under, or require
notice to or the consent of any person under, any agreement, law,
rule, regulation, judgment, order or decree by which Stockholder is
bound, except for such conflicts, breaches, violations or defaults
that would not, individually or in the aggregate, prevent or delay
Stockholder from performing his, her or its obligations under this
Agreement.
5. Consent and Waiver .
Stockholder hereby waives any and all rights to contest or object
to the execution and delivery of the Merger Agreement, the Company
Board of Directors’ actions in approving and recommending the
Merger, the consummation of the Merger and the other transactions
provided for in the Merger Agreement, or to seek damages or other
legal or equitable relief in connection therewith (but for the
avoidance of doubt this waiver does not extend to any claims
relating to any breach of the Merger Agreement). From and after the
Effective Time, Stockholder’s right to receive cash on the
terms and subject to the conditions set forth in the Merger
Agreement shall constitute Stockholder’s sole and exclusive
right against the Company and/or Parent in respect of
Stockholder’s ownership of the
