FORM OF AMENDMENT TO VOTING AGREEMENT
Exhibit 2.2.1
FORM OF
AMENDMENT TO VOTING AGREEMENT
AMENDMENT TO VOTING AGREEMENT
This Voting Agreement Amendment (“Voting Agreement Amendment”) is entered
into as of November ___, 2008, by and between Brocade Communications Systems, Inc., a
Delaware corporation (“Parent”), and the undersigned stockholder (“Stockholder”) of
Foundry Networks, Inc., a Delaware corporation (the “Company”).
Recitals
A. Stockholder Owns certain securities of the Company.
B. Parent, Falcon Acquisition Sub, Inc., a Delaware corporation (“Merger Sub”), and
the Company entered into an Agreement and Plan of Merger dated as of July 21, 2008 (the “Merger
Agreement”) which provided (subject to the conditions set forth therein) for the merger of
Merger Sub into the Company.
C. In connection with the execution and delivery of the Merger Agreement, Parent and
Stockholder entered into a Voting Agreement (the “Voting Agreement”) and Stockholder
executed and delivered in favor of Parent an Irrevocable Proxy in the form attached to the Voting
Agreement as Exhibit A (the “Proxy”).
D. Parent, Merger Sub and the Company are entering into a document entitled “Amendment No. 1
to Agreement and Plan of Merger” of even date herewith (the “Merger Agreement Amendment”),
which amends the Merger Agreement in certain respects, including by, among other things, decreasing
the amount of the Merger Consideration (as defined in the Merger Agreement) payable thereunder.
E. Pursuant to the terms of the Voting Agreement, the decrease in the Merger Consideration
effected by the Merger Agreement Amendment would result in the occurrence of the “Termination Date”
under the Voting Agreement unless Parent and Stockholder enter into an amendment to the Voting
Agreement that extends the Termination Date to a later date. Parent and Stockholder desire to
amend the Voting Agreement to provide that the Termination Date shall not occur by reason of the
reduction in the Merger Consideration effected by the Merger Agreement Amendment.
F. Stockholder is entering into this Voting Agreement Amendment in order to induce Parent to
enter into the Merger Agreement Amendment.
Agreement
The parties to this Voting Agreement Amendment, intending to be legally bound, agree as
follows:
Section 1. Definitions
1.1 Definitions. Each capitalized term used but not defined in this Voting Agreement
Amendment shall have the meaning assigned to such term in the Voting Agreement.
Section 2. Amendment to Voting Agreement
2.1 No Termination Date. Stockholder hereby agrees and acknowledges that notwithstanding
anything to the contrary in the Voting Agreement, the Termination Date shall not be deemed to have
occurred by reason of either (a) the entering into of the Merger Agreement Amendment or (b) any of
the terms of the Merger Agreement Amendment, including the reduction in the Merger Consideration
effected thereby.
2.2 Amendment to Section 1(e) of the Voting Agreement. The definition of “Termination Date”
in Section 1(e) of the Voting Agreement shall be deleted and replaced in its entirety with the
following:
“(e) Termination Date” shall mean the earliest of (i) the date upon which the
Merger Agreement is validly terminated in accordance with its terms, (ii) the Effective
Time, (iii) the date upon which the parties hereto agree in writing to terminate this
Agreement; or (iv) any amendment to the Merger Agreement that results in a decrease in the
“Merger Consideration” as set forth in the Merger Agreement below $16.50 per share of
Company Common Stock; provided, however, that if at or prior to the time the Termination
Date would otherwise occur, Parent and Stockholder enter into any amendment or extension of
this Agreement that extends the Termination Date to a later date, the “Termination Date”
shall not be deemed to have occurred until the date designated as the Termination Date in
such amendment or extension.”
2.3 Proxy Remains in Effect. Stockholder hereby agrees and acknowledges that the Proxy shall
remain in full force and effect notwithstanding (and following) the execution and delivery of this
Voting Agreement Amendment.
Section 3. Miscellaneous
3.1 No Further Amendment. Except as otherwise expressly provided in this Voting Agreement
Amendment, all of the terms and conditions of the Voting Agreement remain unchanged and continue in
full force and effect.
3.2 Effect of Amendment. This Voting Agreement Amendment shall form a part of the Voting
Agreement for all purposes, and each party hereto and thereto shall be bound hereby. This Voting
Agreement Amendment shall be deemed to be in full force and effect from and after the execution of
this Voting Agreement Amendment by the parties hereto.
3.3 Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof. In any action
between the parties arising out of or relating to this Agreement or any of the transactions
contemplated by this Agreement each of the parties irrevocably and unconditionally consents and
submits to the jurisdiction and venue of the Chancery Court of the State of Delaware. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) RELATING TO THIS AGREEMENT OR THE PROXY OR THE
ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY
3.4 Entire Agreement; Counterparts; Exchanges by Facsimile or Electronic Delivery. This
Voting Agreement Amendment, the Voting Agreement (as amended by this Voting
2.
Agreement Amendment), the Proxy and any other documents referred to herein or delivered
pursuant hereto constitute the entire agreement between the parties with respect to the subject
matter hereof and thereof and supersede all prior agreements and understandings between the parties
with respect thereto and are not intended to confer, and shall not be construed as conferring, upon
any person other than the parties hereto any rights or remedies hereunder. No addition to or
modification of any provision of the Voting Agreement (as amended by this Voting Agreement
Amendment) shall be binding upon either party unless made in writing and signed by both parties.
This Voting Agreement Amendment may be executed in several counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same instrument. The exchange of a
fully executed Amendment (in counterparts or otherwise) by facsimile or by electronic delivery
shall be sufficient to bind the parties to the terms of this Voting Agreement Amendment.
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3.
In Witness Whereof, Parent and Stockholder have caused this Voting Agreement
Amendment to be executed as of the date first written above.
| Brocade Communications Systems, Inc. |
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| Stockholder |
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| Signature | ||||
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Voting Agreement Amendment Signature Page
