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Exhibit 2.3
Execution Copy
VOTING AND OPTION AGREEMENT
VOTING AND OPTION AGREEMENT, dated as of ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
(▇▇▇▇▇▇▇) ApS., a Danish corporation ("Amdocs Parentco"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ (collectively, the "Shareholders").
WHEREAS, Amdocs Limited ("Amdocs") and Architel Systems Corporation, a
Canadian corporation (the "Company"), Amdocs Parentco and 3026191 Nova Scotia
ULC ("Amdocs Holdco") have entered into a Combination Agreement of even date
herewith (such agreement, as it may be amended from time to time, the
"Combination Agreement"; capitalized terms used and not defined herein shall
have the respective meanings given such terms in the Combination Agreement),
pursuant to which the parties thereto have agreed, upon the terms and subject to
the conditions set forth therein, to an arrangement (the "Arrangement") to be
effected by articles of arrangement to be filed pursuant to the Canada Business
Corporation Act, whereby each issued and outstanding common share, no par value,
of the Company (collectively, the "Company Common Shares") will be exchanged for
a number of Exchangeable Shares at the Exchange Ratio;
WHEREAS, as of the date hereof, each Shareholder is the record and
beneficial owner of, and has the sole right to vote and dispose of, the Company
Common Shares set forth opposite the name of such Shareholder on Schedule I
hereto (the "Shares"); and
WHEREAS, as a condition to its willingness to enter into the
Combination Agreement and the transactions contemplated thereby (and to cause
its wholly-owned subsidiary Amdocs Holdco to enter into the Combination
Agreement), Amdocs Parentco has required that each Shareholder agree, and each
of the Shareholders is willing to agree, to the matters set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereto agree as follows:
1. Representations and Warranties of Shareholders. Each Shareholder severally
represents and warrants to Amdocs Parentco as follows:
1.1 Binding Agreement. Such Shareholder has the capacity to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. Such Shareholder has duly and validly executed and delivered
this Agreement and this Agreement constitutes a legal, valid and
binding obligation of such Shareholder, enforceable against such
Shareholder in accordance with its terms except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights generally and by general
equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law).
1.2 No Conflict. Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the
compliance with any of the provisions hereof, (a) in the case of such
Shareholder, require any consent, approval, authorization or permit of,
registration, declaration or filing (except for filings under the
Securities Exchange Act of 1934, as amended (the
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"1934 Act"), and the Securities Act (Ontario), if applicable) with, or
notification to, any governmental entity, (b) result in a default (or
an event which, with notice or lapse of time or both, would become a
default) or give rise to any right of termination by any third party,
cancellation, amendment or acceleration under any contract, agreement,
instrument, commitment, arrangement or understanding, or result in the
creation of a security interest, lien, charge, encumbrance, equity or
claim with respect to any of the Shares, (c) require any material
consent, authorization or approval of any person other than a
governmental entity, or (d) violate or conflict with any order, writ,
injunction, decree or law applicable to such Shareholder or the Shares.
1.3 Ownership of Shares. Such Shareholder is the record and beneficial
owner of the Shares, free and clear of any security interests, liens,
charges, encumbrances, equities, claims, options (other than the Option
(as defined below) or pledges pursuant to commercially customary
brokers margin accounts which would not restrict the exercise of the
Option (as defined below) upon payment of the margin loan) or
limitations of whatever nature and free of any other limitation or
restriction (including any restriction on the right to vote, sell or
otherwise dispose of the Shares). There are no outstanding options or
other rights to acquire from such Shareholder or obligations of such
Shareholder to sell or to acquire, any Company Common Shares.
2. Representation and Warranties of Amdocs. Amdocs Parentco represents and
warrants to each of the Shareholders as follows:
2.1 Binding Agreement. Amdocs Parentco is a corporation duly incorporated,
validly existing and in good standing under the laws of Denmark, and
has full corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Amdocs Parentco and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Amdocs Parentco. Amdocs
Parentco has duly and validly executed this Agreement and this
Agreement constitutes a legal, valid and binding obligation of Amdocs
Parentco, enforceable against Amdocs Parentco in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by general equitable principles
(regardless of whether enforceability is considered in a proceeding in
equity or at law).
2.2 No Conflict. Neither the execution and delivery of this Agreement, the
consummation by Amdocs Parentco of the transactions contemplated
hereby, nor the compliance by Amdocs Parentco with any of the
provisions hereof will (a) conflict with or result in a breach of any
provision of its Memorandum of Association, Articles of Association or
By-laws, (b) require any consent, approval, authorization or permit of,
registration, declaration or filing (except for filings under the 1934
Act and with the Canadian Securities Commissions under early warning
requirements and insider reporting requirements, if applicable) with,
or notification to, any governmental entity, (c) result in a default
(or an event which, with notice or lapse of time or both, would become
a default) or give rise to any
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right of termination by any third party, cancellation, amendment or
acceleration under any contract, agreement, instrument, commitment,
arrangement or understanding.
3. Certain Prohibited Transfers. From the earlier of April 1, 1999 and such time
as officers of the Company are prohibited by Company policy from trading in
Architel securities generally, each Shareholder agrees not to:
3.1 sell, transfer, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding
with respect to the sale, transfer, pledge, encumbrance, assignment or
other disposition of, any Company Common Shares;
3.2 grant any proxies or enter into a voting agreement or other arrangement
with respect to any Company Common Shares; or
3.3 deposit any Company Common Shares into a voting trust.
4. Option.
4.1 Each of the Shareholders hereby grants to Amdocs Parentco the exclusive
and irrevocable option to purchase (the "Option"), on the terms and
conditions hereinafter set forth, all of the Shares, together with (i)
any additional Company Common Shares or other shares of the share
capital of the Company acquired by such Shareholder after the date
hereof and prior to the exercise of the Option, or which such
Shareholder is entitled to receive from the Company by reason of being
a record holder during such period, and (ii) any securities into which
any Shares or additional shares of the Company's share capital shall
have been converted or changed whether by amendment to the Articles of
Incorporation of the Company, merger, consolidation or otherwise
(collectively, the "Additional Shares").
4.2 The Option may be exercised by Amdocs Parentco in whole, or in part, at
any time or from time to time, after the occurrence of a Trigger Event
and prior to the Termination Date. "Trigger Event" means the occurrence
of an event that will entitle Amdocs Parentco to receive the
Termination Fee contemplated by the second sentence of Section 9.4(a)
of the Combination Agreement. "Termination Date" means the earliest to
occur of (i) the Effective Time (as defined in the Combination
Agreement); (ii) one year after the first occurrence of a Trigger
Event; (iii) the termination of the Combination Agreement (A) if, but
only if, the Combination Agreement is terminated for reasons that are
not directly or indirectly related to (x) the commencement of, or any
person's direct or indirect indication of interest in making, an
Acquisition Proposal (as defined in the Combination Agreement) or (y)
the breach of any provision of Section 4.4 or 4.11 thereof or (B) by
the Company pursuant to Section 9.1(b) thereof. Notwithstanding the
occurrence of the Termination Date, Amdocs Parentco shall be entitled
to purchase Common Shares pursuant to any exercise of the Option if
Amdocs Parentco exercised the Option prior to the occurrence of the
Termination Date (the "Option Period").
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4.3 In the event Amdocs Parentco wishes to exercise the Option, Amdocs
Parentco shall send a written notice to the Shareholders specifying the
total number of Shares with respect to which it has exercised the
Option pursuant to this Section 4, and a place and date (not less than
two nor more than ten business days from the date such notice is given)
for the closing of the purchase of the Shares (the "Closing").
4.4 At the Closing, (i) each Shareholder will deliver to Amdocs Parentco a
certificate or certificates representing the Shares (and, if
applicable, the Additional Shares) owned by such Shareholder, duly
endorsed for transfer or accompanied by appropriate stock powers,
together with evidence satisfactory to Amdocs Parentco of payment of
all stock transfer taxes or exemption therefrom and (ii) Amdocs
Parentco shall, in consideration therefor, deliver or cause to be
delivered to each Shareholder at the option of the Shareholder either
(A) a certificate representing the number of Amdocs Ordinary Shares
equal to the product (rounded down to the nearest whole share) of (x)
the aggregate number of Shares being purchased by Amdocs Parentco from
such Shareholder and (y) the Exchange Ratio or (B) cash in the amount
of US$23.25 per Share.
5. Voting Agreement and Related Matters.
5.1 Voting Agreement. Until the earlier of the Termination Date and the
Effective Time, each Shareholder hereby agrees to attend all meetings
of the shareholders of the Company and that at any meeting of the
shareholders of the Company, however called, or in connection with any
action by written consent by the shareholders of the Company, such
Shareholder shall vote all of the Shares and Additional Shares owned by
him, her or it:
(i) in favor of the transactions contemplated by the Combination
Agreement; and
(ii) against any action or agreement that could result in a breach
in any material respect of any covenant, representation or
warranty or any other obligation of the Company under the
Combination Agreement.
5.2 Surrender of Certificates. Each Shareholder shall surrender to the
Company all certificates representing the Shares and the Additional
Shares owned by such Shareholder.
5.3 No Dissent. Each Shareholder covenants that it will not exercise any
rights of dissent provided under Section 190 of the CBCA or the Interim
Order or otherwise in connection with the Arrangement.
5.4 Support. Each Shareholder will do all such things and take all such
steps as Amdocs Parentco may reasonably require be done or taken by the
Shareholders to support the Arrangement and complete the transactions
contemplated by the Combination Agreement. Each Shareholder agrees not
to take any step which is inconsistent with, or which may delay or
prevent, the successful completion of the Arrangement.
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5.5 Nothing herein shall prevent a Shareholder, if acting in his capacity
as a director or officer of the Company, from discharging his fiduciary
duties.
6. Miscellaneous.
6.1 Additional Shares. Each Shareholder hereby agrees, while this Agreement
is in effect, to promptly notify Amdocs Parentco of the number of
Additional Shares acquired by such Shareholder, if any, after the date
hereof.
6.2 Efforts. Each Shareholder agrees not to take any action which would
make any representation or warranty of such Shareholder herein untrue
or incorrect in any material respect or take any action that would make
any representation or warranty of or have the effect of preventing or
disabling such Shareholder from performing his, her or its obligations
under this Agreement.
6.3 Specific Enforcement. The parties hereto acknowledge that damages would
be an inadequate remedy for a breach of this Agreement and that the
obligations of the parties hereto shall be specifically enforceable, in
addition to any other remedy which may be available at law or in
equity.
6.4 Commissions. Each Shareholder and Amdocs Parentco, in connection with
the transactions contemplated hereby, severally agree to indemnify and
hold the other harmless from and against any and all claims,
liabilities or obligations with respect to any brokerage fees,
commissions or finders' fees asserted by any person on the basis of any
act or statement alleged to have been made by such party or its
affiliate.
6.5 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expenses.
6.6 Amendment. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written
agreement executed by the parties hereto.
6.7 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (i) transmitter's confirmation
of a receipt of a facsimile transmission, (ii) confirmed delivery by a
standard overnight carrier or when delivered by hand or (iii) the
expiration of five business days after the day when mailed by certified
or registered mail, postage prepaid, addressed at the following
addresses (or at such other address for a party as shall be specified
by like notice):
(a) If to Amdocs Parentco, to it:
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c/o Amdocs (UK) Limited
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇-▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Reboul, MacMurray, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kristol
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to any Shareholder, to such Shareholder at the address or
facsimile number set forth on Schedule I hereto.
6.8 Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written
and oral, among the parties, or any of them, with respect to the
subject matter hereto.
6.9 Successors and Assigns. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the
other parties hereto, except that this Agreement may be assigned in
whole or in part to any affiliate of Amdocs Parentco. This Agreement
will be binding upon, inure to the benefit of and be enforceable by
each party and such party's respective heirs, beneficiaries, executors,
representatives and permitted assigns.
6.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
6.11 Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State
of New York (without giving effect to the provisions thereof relating
to conflicts of law).
6.12 Further Assurance. In the event of any exercise of the Option by Amdocs
Parentco, the Shareholders and Amdocs Parentco shall execute and
deliver all other documents and instruments and take all other actions
that may be reasonably necessary in order to consummate the
transactions provided for by such exercise.
6.13 Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in
any other jurisdiction. If any provision of this Agreement is so broad
as to be
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unenforceable, the provision shall be interpreted to be only so broad
as is enforceable.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by each Shareholder and a duly authorized officer of Amdocs on the day and year
first written above.
AMDOCS (DENMARK) ApS.
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Director
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
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SCHEDULE 1
Number of Options for
Number of Company Common Shares Company Common Shares
▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ 540,000 150,000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ 978,530* 0
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
* Excludes 50,000 Company Common Shares pledged by ▇▇. ▇▇▇▇▇ to secure a bank
line of credit. If such lien is released, such shares will be deemed Additional
Shares hereunder.
