1
Exhibit 2.0
VOTING AGREEMENT
February 22, 2000
TO: ALCATEL
Dear Sirs,
RE: PLAN OF ARRANGEMENT INVOLVING NEWBRIDGE CORPORATION
In consideration of ALCATEL ("ALCATEL") entering into a merger agreement
dated the date hereof with, and agreeing to participate in the plan of
arrangement involving, NEWBRIDGE NETWORKS CORPORATION ("NEWBRIDGE") (the
"TRANSACTION"), this letter agreement sets out the terms on which Xxxxxxx
Xxxxxxxx and his associated corporations referred to herein (each, a
"SHAREHOLDER" and collectively, the "SHAREHOLDERS") undertake to take certain
actions and do certain things in respect of the Transaction.
The terms of the Transaction are summarized in the Merger Agreement dated
February 22, 2000 between ALCATEL and NEWBRIDGE (the "MERGER AGREEMENT"), and
capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Merger Agreement.
1. Each of the Shareholders hereby represents and warrants to you (and
acknowledges that you are relying upon such representations and
warranties):
(a) that the common shares in the capital of NEWBRIDGE and the
options to acquire the common shares in the capital of NEWBRIDGE
(the "SHARES" and the "OPTIONS", respectively) set forth on Annex I
include all Shares and Options held of record, owned by, or for
which voting or dispositive power is granted to, any relative, trust
or other affiliate of Shareholder of which Shareholder has or shares
any voting power or power of disposition. Except as described on
Schedule 1(a), Shareholder is the record and beneficial owner, has
sole voting power, 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 Shares and the Options set forth on Annex I
attributable to such Shareholder. Shareholder has good and
marketable title to the Shares, free and clear of all liens,
pledges, mortgages and encumbrances, except as set forth on Schedule
1(a) hereto. As to any Shares that Shareholder indicates he/it does
not have such sole powers, the Shareholders shall use their
reasonable best efforts to cause all of his/its obligations under
this Agreement to be complied with by any person having such powers.
Other than the Shares and Options set forth on Annex I no common
2
- 2 -
shares or securities of NEWBRIDGE are beneficially owned or
controlled directly or indirectly by any Shareholder;
(b) that Shareholder has the legal capacity to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by Shareholder, and, assuming the due authorization,
execution and delivery by ALCATEL, this Agreement constitutes the
legal, valid and binding obligation of Shareholder, enforceable in
accordance with its terms;
(c) neither the execution and delivery of this Agreement by
Shareholder, the consummation by Shareholder of the transactions
contemplated hereby nor the compliance by 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 Shareholder is a party or by which Shareholder or any of
his/its properties or assets (including the Shares and the Options)
may be bound, except as may be set forth in existing option
agreements, (ii) require on the part of Shareholder any filing with,
or permit, authorization, consent or approval of, any Governmental
Entity, or (iii) violate any order, writ, injunction, decree,
judgment, or Law applicable to Shareholder or any of his/its
properties or assets, excluding from the foregoing such violations,
breaches, defaults or failures to make any filing or to obtain any
permit, authorization, consent or approval which would not,
individually or in the aggregate, impair the ability of Shareholder
to consummate the transactions contemplated hereby; and
(d) that there is no private or governmental action, suit,
proceeding, claim, arbitration or investigation pending before any
Governmental Entity, or, to the knowledge of any Shareholder,
threatened against Shareholder or any of its respective properties
or any of its respective officers or directors, in the case of a
corporate entity (in their capacities as such) that, individually or
in the aggregate, could reasonably be expected to have a material
adverse effect on Shareholder's ability to consummate the
transactions contemplated by this Agreement. There is no judgment,
decree or order against Shareholder or, to the knowledge of any
Shareholder, any of its respective directors or officers, in the
case of a corporate entity (in their capacities as such) that could
prevent, enjoin, alter or materially delay any of the
3
- 3 -
transactions contemplated by this Agreement, or that could
reasonably be expected to have a material adverse effect on
Shareholder's ability to consummate the transactions contemplated
by this Agreement.
2. Each Shareholder hereby represents and warrants to you and covenants with
you that between the date of this Agreement and the earlier of (i) the
date of termination of the Merger Agreement in accordance with its terms,
and (ii) the effective date of the Transaction (such earlier date being
the "EXPIRY DATE"), no Shareholder shall (A) sell, transfer, gift, assign,
pledge, hypothecate, encumber or otherwise dispose of any of the Shares,
Options or any common shares of Newbridge arising from the exercise of the
Options (the "ADDITIONAL SHARES"), or enter into any agreement,
arrangement or understanding in connection therewith, without having first
obtained the prior written consent of ALCATEL, or (B) grant any proxies or
powers of attorney, deposit any Shares, Options or Additional Shares
(collectively, the "OWNED SECURITIES") into a voting trust or enter into a
voting agreement, understanding or arrangement with respect to such Owned
Securities; provided, however, that (I) up to a maximum of 1,000,000
Shares in the aggregate (less one half the number of any Shares pledged as
described in (II)) may be sold by the Shareholders, (II) up to a maximum
of 2,000,000 Shares (less two times the number of Shares sold as described
in (I)) may be pledged or hypocated to a bona fide lender to secure a loan
(so long as such loan agreement provides that such Shareholder may vote
such pledged Shares), and (III) the Owned Securities may be transferred to
affiliates of the Shareholders to facilitate any transaction effected in
accordance with Section 4.11 of the Merger Agreement, provided that any
NEWBRIDGE shares obtained by the Shareholders in connection with such
transaction shall be subject to the terms hereof. None of the provisions
of this Agreement shall apply to any of the secured parties described in
Schedule 1(a) or who may become secured parties pursuant to this Section
2(II) that realize on their security interest in such pledged or
hypothecated Shares.
3. The Shareholders hereby undertake, until the Expiry Date:
(a) to vote (or cause to be voted) all the Shares, the Additional
Shares and the Options at any meeting of the shareholders of
NEWBRIDGE, and in any action by written consent of the shareholders
of NEWBRIDGE (i) in favour of the approval, consent, ratification
and adoption of the Transaction (and any actions required in
furtherance thereof); or (ii) against any action that would impede,
interfere, or discourage the Transaction (excluding for greater
certainty, a Superior Proposal), and against any action that would
result in any breach of any representation, warranty or covenant in
the Merger Agreement. Upon
4
- 4 -
the request or direction of ALCATEL, the Shareholders shall execute
a proxy in respect of any such resolution, and shall have the Owned
Securities counted or not counted as part of a quorum in connection
with any Newbridge shareholders meeting relating to matters set
forth in Section 3(a)(ii).
(b) the Shareholders shall not without the prior written consent
of ALCATEL requisition or join in the requisition of any meeting of
the shareholders of NEWBRIDGE for the purpose of considering any
resolution;
(c) for greater certainty, in connection with any matter referred
to in Section 3(a)(ii), the Shareholders shall consult with ALCATEL
prior to exercising any voting rights attached to the Shares, the
Additional Shares or the Options and shall exercise or procure the
exercise of such voting rights as ALCATEL shall instruct, including
without limitation the delivery to ALCATEL, upon its request or
direction, of a proxy in respect of any such resolution; and
(d) each Shareholder shall use its best efforts not to default,
or take or omit to take any action which could reasonably be
expected to cause a default, under those loans or other arrangements
to which such Shareholder is subject that are described in Schedule
1(a) hereto or as permitted pursuant to Section 2 hereof.
4. Each Shareholder (in the case of Xxxxxxx Xxxxxxxx in his capacity as a
shareholder and not as a director of NEWBRIDGE) agrees that, until the
Expiry Date, such Shareholder will not, directly or indirectly, negotiate
with, solicit, initiate or encourage submission of proposals or offers
from, or provide information to, any other person, entity or group
relating to an Acquisition Proposal.
5. The Shareholders hereby irrevocably agree:
(a) to details of this Agreement being set out in any information
circular produced by NEWBRIDGE and/or ALCATEL in connection with the
Transaction; and
(b) to this Agreement being available for inspection until the
Expiry Date.
6. Xxxxxx Xxxxxx Corporation and Xxxxxxx Xxxxxxxx shall cause Kanata
Research Park Corporation ("Kanata"), as soon as reasonably possible and
in any event prior to the closing of the Transaction but conditional upon
such closing, to have waived all of its rights to terminate any leases to
which NEWBRIDGE or any subsidiary is a party as a result of the
Transaction or
5
- 5 -
any other pre-existing conditions or liabilities whatsoever prior to the
date hereof, and to have entered into an agreement to enable NEWBRIDGE or
its subsidiaries at their respective option to extend such leases for up
to two periods of up to five years each on the same terms (except as to
renewal) and at agreed or arbitrated fair market value rents, subject
only to applicable laws and to require NEWBRIDGE or the relevant
subsidiary to give Kanata at least nine months notice if it does not
intend to extend any such lease.
7. Notwithstanding Section 3(a), the Shareholders shall not be bound to vote
in favour of, or grant ALCATEL a proxy on the Owned Securities to vote
for, the Transaction in the event that, at the time of the NEWBRIDGE
Meeting, the tax laws of Canada shall have been amended, or proposed for
amendment by the Minister of Finance, in such a manner that tax deferral
for the Transaction would not be available via the use of exchangeable
shares as is proposed under the Merger Agreement.
8. I, Xxxxxxx Xxxxxxxx, shall cause 0000-0000 Xxxxxx Inc. to enter into this
Agreement as soon as practicable.
9. I, Xxxxxxx Xxxxxxxx, agree and confirm that I am bound by the terms of a
Non-Competition Agreement with NEWBRIDGE dated October 14, 1987.
10. Any date, time or period referred to in this Agreement shall be of the
essence except to the extent to which ALCATEL and the Shareholders agree
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 Shareholders agree that monetary damages would not be an adequate
remedy for any loss incurred by reason of a breach of this Agreement by
any of them and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
12. The Shareholders agree and confirm 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 Shareholders and ALCATEL 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. In consideration of the Shareholders entering into this Agreement
effective upon the closing of the Transaction, ALCATEL shall be obligated
to
6
- 6 -
reimburse the Shareholders for his/its reasonable out-of-pocket expenses,
including legal, accounting and financial advisory fees, incurred in
connection with the Transaction, but not in excess of CAN $200,000.
14. The parties agree as follows:
(a) As soon as practicable, but in any event no later than the
date upon which ALCATEL files with the SEC the Form F-3 pursuant to
Section 2.7(5) of the Merger Agreement, ALCATEL shall file a "shelf"
registration statement pursuant to Rule 415 of the 1933 Act (the
"Registration Statement"), with respect to the resale of all of the
ALCATEL securities initially issuable upon exchange of the
Exchangeable Shares, including, without limitation, the ALCATEL
ADSs, to be issued to the Shareholders pursuant to the Merger
Agreement (together with any securities of ALCATEL initially issued
or issuable with respect to the Exchangeable Shares received by the
undersigned in connection with the Transaction by way of a dividend
or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or
otherwise, collectively, the "Registrable Securities"). ALCATEL
shall use its reasonable efforts to (i) have the Registration
Statement declared effective on or before the Effective Date, and
(ii) to keep the Registration Statement continuously effective from
the date such Registration Statement is declared effective until the
Termination Date (as defined below).
(b) ALCATEL and the Shareholders shall each indemnify the other
consistent with indemnification granted by issuers and selling
shareholders for "shelf" registration statements.
(c) ALCATEL shall pay all costs, fees and expenses incident to
ALCATEL's performance of or compliance with this Section 14,
including, without limitation, all registration, filing, and NASD
fees and all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (but excluding any
underwriting commissions, fees or expenses) and with respect to any
supplements or amendments to the Registration Statement, whether the
Registration Statement becomes effective and whether all, none or
some of the Registrable Securities are sold pursuant to the
Registration Statement.
(d) The "Termination Date" means the earlier of the first date on
which the Registrable Securities may be distributed to the public by
the undersigned pursuant to Rule 144(k) or such date on which the
7
- 7 -
Shareholders are no longer "affiliates" of ALCATEL under the
Securities Act and subject to Rule 145.
15. The Shareholders, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, shall be entitled to
specific performance of its rights under Section 14. ALCATEL agrees that
monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of Section 14 and hereby
agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
16. The provisions of this Agreement constitute legal, valid and binding
obligations of ALCATEL, enforceable against it in accordance with its
terms.
17. All notices, requests, claims, demands and other communications hereunder
shall be in writing and shall be given (and shall be deemed to have been
duly given upon receipt) by delivery in person, by telecopy, facsimile,
cable, telegram or telex, or by registered or certified mail (postage
prepaid, return receipt requested) or by a nationally recognized courier
service to the respective parties at their addresses as specified in Annex
II hereto.
18. 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.
19. The provisions of this Agreement shall be binding upon and enure to the
benefit of the parties hereto and their respective 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 ALCATEL 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.
20. This Agreement is governed by the laws of the Province of Ontario and the
federal laws of Canada applicable therein. All actions and proceedings
arising out of and relating to this Agreement shall be heard and
determined
8
- 8 -
exclusively in the courts of the Province of Ontario. Notwithstanding
the foregoing, Section 15 of this Agreement shall be governed by the laws
of the State of Delaware without regard to any applicable conflicts of
law.
21. ALCATEL shall permit NEWBRIDGE to arrange for a "safe income tuck-in"
transaction (the "Tuck-in") or, if a Tuck-in does not achieve the
objective of crystallizing the "safe income" or results in other material
adverse tax consequences to the Shareholders, another form of safe income
crystallisation transaction, with one or more Shareholders, provided that:
(a) only one form of transaction will be required;
(b) such transaction is to be completed in accordance with
applicable Laws prior to the Effective Date;
(c) such transaction (other than a Tuck-in) must be accomplished
in a manner that does not entail any material cost, expense,
obligation or liability (and for this purpose $2,500,000 in the
aggregate shall be deemed not to be material), or any delay in
completing the Arrangement, to NEWBRIDGE or their respective
subsidiaries or shareholders (including to NEWBRIDGE's
non-participating shareholders); and
(d) such transaction and its terms and conditions must be
satisfactory to ALCATEL, acting reasonably (limited to, in the case
of a Tuck-in, its effect on NEWBRIDGE or its shareholders).
In the event that such transaction or its terms and conditions are not
satisfactory to ALCATEL, acting reasonably, or the Ontario Securities
Commission refuses to grant any relief required in connection with any
such transaction, ALCATEL will use its reasonable best efforts, for a
period not to exceed 15 Business Days to assist NEWBRIDGE and the
Shareholders in structuring such a transaction in a manner satisfactory
to ALCATEL, acting reasonably. The parties acknowledge that ALCATEL will
require, without limitation, that the Arrangement and related matters
(after taking into account any transaction described herein) be poolable
under French GAAP and not objectionable to the COB or the PSE, and that a
Tuck-in does not adversely affect these pooling and COB/PSE issues. In
the event that no such transaction is satisfactory to ALCATEL, acting
reasonably, where it used its reasonable best efforts as aforesaid, this
shall not affect the completion of the Arrangement or this Agreement.
9
- 9 -
This Voting Agreement has been agreed and accepted this 22nd day of
February, 2000.
ALCATEL
Per: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------
/s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Xxxxxxx Xxxxxxxx
XXXXXX XXXXXX CORPORATION
Per: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
----------------------------------
3090-8081 QUEBEC INC.
Per:
-----------------------------------
Name:
----------------------------------
2874806 CANADA INC.
Per: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
----------------------------------
2985314 CANADA INC.
Per: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
----------------------------------
10
ANNEX I
SHARES
------
Xxxxxxx Xxxxxxxx 4,974,000
Xxxxxx Xxxxxx Corporation 32,379,153
0000-0000 Xxxxxx Inc. 595,000
2874806 Canada Inc. 1,745,920
2985314 Canada Inc. 16,835
OPTIONS
-------
None
11
ANNEX II
ADDRESS
-------
Alcatel
00, Xxx xx Xx Xxxxxx
00000 Xxxxx Xxxxxx
Attention: General Counsel
Telecopier No.: 011-331-4076-1435
Xxxxxxx Xxxxxxxx
[to be provided]
Xxxxxx Xxxxxx Corporation
[to be provided]
0000-0000 Xxxxxx Inc.
[to be provided]
2874806 Canada Inc.
[to be provided]
2985314 Canada Inc.
[to be provided]
12
SCHEDULE 1(a)
(i) 3,002,724 Shares owned by Xxxxxxx Xxxxxxxx are pledged to Barclays Bank
as security;
(ii) 100,000 Shares owned by Xxxxxxx Xxxxxxxx are pledged to Royal Bank as
security;
(iii)13,686,773 Shares owned by Xxxxxx Xxxxxx Corporation are pledged to
Royal Bank as security.
This security varies according to a formula based on the outstanding
indebtedness to the Bank and market price of the shares;
(iv) 16,000 Shares owned by Xxxxxx Xxxxxx Corporation are pledged to Bank of
Wales as security;
(v) 2,245,602 Shares owned by Xxxxxx Xxxxxx Corporation are pledged to Xxxx
Xxxxx & Sons as security; and
(vi) 50,000 Shares owned by 0000-0000 Xxxxxx Inc. are pledged to National
Trust.
13
AMENDMENT NO. 1 TO VOTING AGREEMENT
Amendment No. 1 to that certain Voting Agreement dated February 22,
2000 (the "Voting Agreement") among Alcatel, Xxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx
Corporation, 3090-8081 Quebec Inc., 2874806 Canada Inc. and 2985314 Canada Inc.
The parties agree as follows:
1. Section 14(d) of the Voting Agreement is hereby amended and
replaced in its entirety with the following:
(d) The "Termination Date" means the earlier of (i) the first
date on which all of the Registrable Securities may be distributed to the public
by the Shareholders pursuant to Rule 144(k) (or similar successor provision)
under the United States Securities Act of 1933, as amended ("1933 Act"); or (ii)
the date which is not less than one year from the Effective Date, provided that
on such date, the Shareholders are not "affiliates" of Alcatel, as determined by
a written opinion of counsel provided by Alcatel acceptable to the Shareholders,
acting reasonably, and Alcatel meets the requirements of paragraph (c) of Rule
144 (or similar successor provision) under the 1933 Act.
2. Section 20 of the Voting Agreement is hereby amended and replaced
in its entirety with the following:
This Agreement is governed by the laws of the Province of
Ontario and the federal laws of Canada applicable therein. All actions and
proceedings arising out of and relating to this Agreement shall be heard and
determined exclusively in the courts of the Province of Ontario. Notwithstanding
the foregoing, Sections 14 and 15 of this Agreement shall be governed by the
laws of the State of New York without regard to any applicable conflicts of
laws.
3. Except as amended hereby, the Voting Agreement shall remain in
full force and effect.
[END OF TEXT]
14
This Amendment No. 1 to the Voting Agreement has been agreed and
accepted this 3rd day of March, 2000.
ALCATEL
Per: /s/ Xxxx-Xxxxxx Halbron
-----------------------
Name: Xxxx-Xxxxxx Halbron
-------------------
/s/ Xxxxxxx Xxxxxxxx
--------------------
Xxxxxxx Xxxxxxxx, individually
XXXXXX XXXXXX CORPORATION
Per: /s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
----------------
3090-8081 QUEBEC INC.
Per:
-----------------
Name:
-----------------
2874806 CANADA INC.
Per: /s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
----------------
2985314 CANADA INC.
Per: /s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
----------------
