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Exhibit B
VOTING AGREEMENT
January 29, 2001
TO: ORCHESTREAM HOLDINGS plc
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Dear Sirs:
Re: Plan of Arrangement involving Crosskeys Systems Corporation
In consideration of Orchestream Holdings plc ("Orchestream") entering into
a merger agreement dated the date hereof (the "Merger Agreement") with, and
agreeing to participate in the plan of arrangement described therein involving
Crosskeys Systems Corporation ("Crosskeys") (the "Transaction"), this letter
agreement sets out the terms on which Alcatel Canada Inc. (the "Shareholder")
undertakes to take certain actions and do certain things in respect of the
Transaction.
The terms of the Transaction are summarized in the Merger Agreement and
capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Merger Agreement.
1. The Shareholder hereby represents, warrants and covenants to Orchestream
(and acknowledges that Orchestream is relying upon such representations,
warranties and covenants):
(a) that the common shares in the capital of Crosskeys and the ordinary
shares in the capital of Orchestream (the "Crosskeys Shares" and
"Orchestream Shares", respectively) set forth on Schedule "A" include
all Crosskeys Shares and Orchestream Shares held of record, owned by,
or for which voting or dispositive power is granted to, the
Shareholder, any trust, affiliate (as defined in the Securities Act
(Ontario) (the "Act") or associate (as defined in the Act) of the
Shareholder (the "Owned Securities");
(b) the Shareholder is the record and beneficial owner, has sole voting
power (to the extent permitted by the attributes of such securities or
pursuant to applicable law, regulation or policy), sole power of
disposition and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to the Crosskeys Shares set
forth on Schedule "A";
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(c) the Shareholder currently has, except as set forth on Schedule "A",
good and marketable title to the Crosskeys Shares set forth on
Schedule "A", free and clear of all liens, pledges, mortgages and
encumbrances and at the Effective Time, the Shareholder shall have,
good and marketable title to such Crosskeys Shares free and clear of
all liens, pledges, mortgages and encumbrances;
(d) the Shareholder has the legal capacity to execute and deliver this
Agreement and perform its obligations hereunder and that this
Agreement has been duly executed and delivered by the Shareholder, and
this Agreement constitutes the legal, valid and binding obligation of
the Shareholder, enforceable in accordance with its terms except as
may be limited by bankruptcy, insolvency and other laws affecting the
enforcement of creditors' rights generally and subject to the
qualification that equitable remedies are in the discretion of the
court;
(e) except as set forth on Schedule "A", neither the execution and
delivery of this Agreement by the Shareholder, the performance by the
Shareholder of their obligations hereunder nor the compliance by the
Shareholder with any of the provisions hereof shall (i) result in any
breach of, or constitute a default (or an event which with notice or
lapse of time or both would become a default) (or give rise to any
third party right of termination, cancellation, material modification
or acceleration) under any of the terms, conditions or provisions of
any note, loan agreement, bond, mortgage, indenture, contract,
license, agreement, lease, permit or other instrument or obligation to
which the Shareholder is a party or by which the Shareholder or any of
its properties or assets (including the Crosskeys Shares) may be
bound, (ii) require on the part of the Shareholder any filing with, or
permit, authorization, consent or approval of, any Governmental Entity
(other than the filing of any required ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ reports), or
(iii) violate any order, writ, injunction, decree, judgment, or Laws
applicable to the Shareholder or any of its properties or assets;
(f) there is no private or governmental action, suit, proceeding, claim,
arbitration or investigation pending before any Governmental Entity,
or, to the knowledge of the Shareholder, threatened against the
Shareholder or any of its properties or any of its officers or
directors (in their capacities as such) that, individually or in the
aggregate, could reasonably be expected to limit the Shareholder's
ability to perform its obligations hereunder. There is no judgment,
decree or order against the Shareholder or, to the knowledge of the
Shareholder, any of its respective directors or officers (in their
capacities as such) that could prevent, enjoin, alter or materially
delay any of the transactions
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contemplated by this Agreement, or that could reasonably be expected
to limit the Shareholder's perform its obligations hereunder;
(g) no Person has any agreement or option, or any right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase, acquisition or transfer from
the Shareholder of any of the Crosskeys Shares owned by the
Shareholder or any interest therein or right thereto or which requires
or provides for the granting of a proxy by such Shareholder in respect
of its Crosskeys Shares;
(h) the Shareholder does not have any agreement or option, or right or
privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase or acquisition by
the Shareholder or transfer to the Shareholder of additional
securities of Crosskeys and, the Shareholder shall not purchase or
otherwise acquire or obtain any agreement or right to purchase any
securities of Crosskeys from and including the date hereof up to and
including the Effective Date; and
(i) the Shareholder does not have any agreement or option, or right or
privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase or acquisition by
the Shareholder or transfer to the Shareholder of additional
securities of Orchestream and the Shareholder shall not purchase,
acquire or obtain any agreement or right to purchase any securities of
Orchestream from and including the date hereof up to and including the
Effective Date.
2. The Shareholder hereby represents, warrants and covenants to Orchestream
(and acknowledges that Orchestream is relying upon such representations,
warranties and covenants) that between the date of this Agreement and the
earliest of:
(a) an amendment to the Merger Agreement or waiver by Crosskeys of any
provision of the Merger Agreement that reduces the consideration
payable to the Company Shareholders under the Plan of Arrangement or
which is otherwise materially adverse to the Company Shareholders;
(b) the date of termination of the Merger Agreement in accordance with its
terms;
(c) the Business Day next following the Effective Date; and
(d) the Business Day next following May 31, 2001;
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(such earliest date being the "Expiry Date"), it shall not (i) sell,
transfer, gift, assign, pledge, hypothecate, encumber or otherwise dispose
of any Owned Securities, or enter into any agreement, arrangement or
understanding in connection therewith, without having first obtained the
prior written consent of Orchestream; or (ii) grant any proxies or powers
of attorney, deposit any Owned Securities into a voting trust or enter into
a voting agreement, understanding or arrangement with respect to such Owned
Securities.
3. The Shareholder hereby undertakes, until the Expiry Date:
(a) to vote (or cause to be voted) all of its Owned Securities at any
meeting of the Company Securityholders, and in any action by written
consent of the Company Securityholders (unless and only then to the
extent prohibited by Law):
(i) in favour of the approval, consent, ratification and adoption of
the Transaction (and any actions required in furtherance thereof)
and all other resolutions to be put to the Company Meeting as
contained in the Company Circular; and
(ii) against any action that would impede, interfere, or discourage
the Transaction, and against any action that would result in any
breach by Crosskeys of any representation, warranty or covenant
in the Merger Agreement;
(b) that, upon the request or direction of Orchestream, the Shareholder
shall execute a proxy in respect of any resolution referred to in this
Section 3, and shall have its Owned Securities counted or not counted
(as directed by Orchestream) as part of a quorum in connection with
any Crosskeys shareholders' meeting relating to matters set forth in
Section 3(a)(ii);
(c) that the Shareholder shall not, without the prior written consent of
Orchestream, requisition or join in the requisition of any meeting of
the shareholders of Crosskeys for the purpose of considering any
resolution; and
(d) for greater certainty, in connection with any matter referred to in
Section 3(a)(ii), the Shareholder shall consult with Orchestream prior
to exercising any voting rights attached to its Owned Securities and
shall exercise or procure the exercise of such voting rights as
Orchestream shall instruct, including without limitation the delivery
to Orchestream, upon its request or direction, of a proxy in respect
of any such resolution.
4. The Shareholder agrees that until the Expiry Date, it shall not:
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(a) take any action which would, directly or indirectly, in any way
interfere with the success of the Transaction; or
(b) directly or indirectly negotiate with, solicit, initiate or encourage
submission of inquiries, proposals or offers from, or provide
information to, any other Person relating to an Acquisition Proposal.
If the Shareholder receives such an inquiry, proposal or offer
(including an offer or invitation to enter into discussions), the
Shareholder shall promptly notify Orchestream in writing and provide
to Orchestream all relevant details relating thereto, including,
without limitation, the price proposed to be paid in connection with
such inquiry, proposal or offer and the form of consideration to be
paid.
5. In the event that the Transaction is consummated, from the Effective Date
until the date that is three months from the Effective Date, the
Shareholder hereby agrees not to sell, transfer or otherwise dispose of, or
enter into a transaction or a series of transactions that have
substantially the same economic effect as a sale of, any Orchestream
Ordinary Shares issuable to them pursuant to the Transaction, without
Orchestream's prior written consent.
6. The Shareholder hereby acknowledges that details of this Agreement shall be
disclosed in any information circular produced by Crosskeys and/or
Orchestream in connection with the Transaction.
7. The Shareholder covenants to discharge all liens, pledges, mortgages and
encumbrances to the Crosskeys Shares set forth on Schedule "A" prior to the
Effective Time.
8. Orchestream hereby represents and warrants to the Shareholder (and
acknowledges that the Shareholder is relying upon such representations and
warranties):
(a) Orchestream is a limited company incorporated in England and Wales,
has been in continuous existence since incorporation, and has the
right, power and authority to own its assets and conduct its business
as owned and conducted at the date of this Agreement;
(b) Orchestream has the right, power and authority to enter into this
Agreement and the Merger Agreement and to perform its obligations
hereunder and thereunder. Orchestream has taken all action necessary
to execute, deliver and exercise its rights, and perform its
obligations, under this Agreement and the Merger Agreement;
(c) this Agreement and the Merger Agreement have been duly executed and
delivered by Orchestream and constitutes legal, valid and binding
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obligations of Orchestream enforceable against it in accordance with
their terms except as may be limited by bankruptcy, insolvency and
other laws affecting the enforcement of creditors' rights generally
and subject to the qualification that equitable remedies are granted
in the discretion of the court; and
(d) at the Effective Time, pursuant to the Arrangement, Orchestream Shares
issuable to the Shareholder at the Effective Time in respect of the
common shares of Crosskeys Systems Corporation held by the Shareholder
set forth on Schedule "A" which are held in Ontario will be resaleable
under the laws of England and Wales and under Ontario Securities Rule
72-501 or otherwise resaleable pursuant to a discretionary order of
the Ontario Securities Commission through the facilities of the LSE or
NASDAQ.
9. Orchestream covenants to effect all necessary filings and otherwise use all
reasonable efforts to effect the admission to trading on the LSE of the
Orchestream Shares to be issued at the Effective Time.
10. Any date, time or period referred to in this Agreement shall be of the
essence except to the extent to which Orchestream and the Shareholder
agrees in writing to vary any date, time or period, in which event the
varied date, time or period shall be of the essence.
11. The Shareholder agrees that monetary damages would not be an adequate
remedy for any loss incurred by reason of a breach of this Agreement and
hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
12. The Shareholder agrees and confirms that:
(a) any provision of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and signed, in the case of
an amendment, by the Shareholder and Orchestream or in the case of a
waiver, by the party against whom the waiver is to be effective; and
(b) no failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further
exercise.
13. Subject to the terms and conditions herein, the Shareholder agrees to take,
or cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations, to
consummate the transactions contemplated by this Agreement.
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14. The representations, warranties and covenants set forth in this Agreement
shall survive the consummation of the Transaction and the Effective Time
and shall continue in full force and effect for the benefit of Orchestream
or the Shareholder, as applicable, for a period of 2 years.
15. All notices, requests, demands and other communications hereunder shall
be in writing and shall be delivered in person or transmitted by telecopy
or similar means of recorded electronic communication to, in the case of a
Shareholder, to the address and facsimile number contained on Schedule "A"
and, in the case of Orchestream, to Avon House, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Facsimile No. (44) 20 7348
1501, Attention: ▇▇▇▇▇▇ ▇▇▇▇, Chief Executive Officer (with a facsimile
copy to Stikeman Elliott (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇. Stransman and
▇▇▇▇▇ ▇. Pukier) or such other address as may be designated in writing
hereafter, in the same manner, by such person. Any such notice or other
communication shall be deemed to have been given and received on the day
on which it was delivered or transmitted (or, if such day is not a
business day, on the next following business day) provided that it is
delivered or transmitted during normal business hours, failing which it
shall be deemed to have been given and received on the next business day.
16. If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of this
Agreement is not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate
in good faith to modify this Agreement so as to effect the original intent
of the parties as closely as possible in a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated
to the fullest extent possible.
17. The provisions of this Agreement shall be binding upon and ensure to the
benefit of the parties hereto and their respective heirs, administrators,
successors and permitted assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights, interests or obligations
under this Agreement without the prior written consent of the other
parties hereto, except that Orchestream may assign, delegate or otherwise
transfer any of its rights, interests or obligations under this Agreement
to an affiliate without reducing its own obligations hereunder without the
consent of the Shareholder.
18. This Agreement sets forth the entire agreement and understanding of the
parties hereto in respect of the transactions contemplated hereby. There
are no warranties, representations, terms, conditions or collateral
agreements,
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expressed, implied or statutory, between the Shareholder and Orchestream
other than as expressly set forth in this Agreement.
19. This Agreement may be executed by facsimile and in counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same agreement.
20. Each party hereto shall pay the fees, costs and expenses of their
respective financial, legal, auditing and other professional and other
advisors incurred in connection with the preparation, execution and
delivery of this Agreement and all documents and instruments executed or
prepared pursuant hereto and any other costs and expenses whatsoever and
howsoever incurred and shall indemnify the other parties from and against
any and all claims for "finders" or "agency" fees relating to the
transactions contemplated hereby.
21. This Agreement is governed by the laws of the Province of Ontario and the
federal laws of Canada applicable therein. Orchestream attorns to the
non-exclusive jurisdiction of the courts of the Province of Ontario with
respect to all action and proceedings arising out of or relating to this
Agreement and agrees to waiver any objection that such courts would be a
convenient forum.
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement.
ORCHESTREAM HOLDINGS plc
by: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇
Chief Executive Officer
Irrevocably accepted and agreed to this 29th day of January, 2001.
ALCATEL CANADA INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: VP & General Counsel
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SCHEDULE "A"
Name and Address
of Shareholder Number of Crosskeys Shares Number of Orchestream Shares
---------------- -------------------------- ----------------------------
Alcatel Canada Inc. 3,618,374(1) bullet
(address and facsimile
number)
[FN]
(1) A portion of these shares are held in escrow pursuant to the escrow
agreement between Crosskeys Systems Corporation, Alcatel Canada Inc.
(formerly called Newbridge Networks Corporation), ▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation
(formerly called Kanata Research Park Corporation), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇▇▇▇ and Computershare Invester Services (formerly called
Montreal Trust Company of Canada), dated December 16, 1997 and need the
consent of the Ontario Securities Commission to be released from escrow.
