EXHIBIT 1
October 22, 2009
To:
CVIDYA NETWORKS, INC.
CVIDYA ACQUISITION LTD. (collectively, the "PURCHASERS")
Dear Gentlemen:
RE: VOTING UNDERTAKING
RECITALS:
A. The undersigned (the "SHAREHOLDER"), is the sole owner, beneficial and
of record, of _________ Ordinary Shares, NIS 0.04 par value per share,
of ECtel Ltd., an Israeli company (the "SHAREHOLDER SHARES", the
"COMPANY SHARES" and the "COMPANY", respectively).
B. Concurrently with the execution of this Undertaking, the Company and
the Purchasers are entering into that certain Agreement and Plan of
Merger, providing for, among other things, the merger of cVidya
Acquisition Ltd. with and into the Company (the "MERGER AGREEMENT").
C. As a material inducement to the willingness of the Purchasers to enter
into the Merger Agreement and to consummate the transactions set forth
therein, the Shareholder has agreed to enter into this Undertaking.
1. VOTING UNDERTAKING.
1.1. Prior to the Closing, and unless the Merger Agreement is terminated
pursuant to Section 8.1 thereof, the Shareholder hereby agrees, at any
annual, extraordinary, or special meeting of the shareholders of the
Company (including without limitation the meeting called to approve
the Merger Agreement), and at any postponement(s) or adjournment(s)
thereof, or pursuant to any consent in lieu of a meeting or otherwise
(the "MEETING"), to vote (or cause to be voted) all Shareholder Shares
and all of the Company Shares the Shareholder now or hereafter owns or
controls, whether beneficially or otherwise held by it (including as a
result of exercise of the options or other securities or rights
convertible, exercisable or exchangeable into Company Shares or
otherwise) (collectively, the "SHARES") in the following manner: (i)
in favor of the Merger Agreement and the approval of the terms thereof
and each of the transactions contemplated thereby, and any actions
required in furtherance thereof; (ii) against any action or agreement
that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement; (iii) against any Alternative
Transaction Proposal (as defined in the Merger Agreement); and (iv)
against any other action involving the Company or its subsidiaries
which is intended, or is reasonably expected, to impede, interfere
with, delay, postpone, or adversely affect the consummation of the
Merger Agreement and the transactions contemplated thereby. Prior to
the Closing and unless the Company terminates the Merger Agreement in
accordance with Section 8.1 thereof, the Shareholder shall not enter
into any agreement or understanding with any person the effect of
which would be inconsistent with or violative of the provisions and
undertakings referred to in this Section 1.1.
1.2. The Shareholder understands and acknowledges that the Purchasers are
entering into the Merger Agreement in reliance upon the Shareholder's
execution and delivery of this Undertaking.
1.3. Without derogating from any provisions to the contrary in the Merger
Agreement, to the extent permitted under applicable law, the
provisions of this Section 1 and the obligations hereunder shall
attach to the Shares and shall be binding upon any person to which
legal or beneficial ownership of such Shares shall pass, whether by
operation of law or otherwise, including, without limitation, the
Shareholder`s administrators or successors, and notwithstanding any
transfer of the Shares, the transferor shall remain liable for the
performance of all obligations of the Shareholder hereunder; provided
however that (notwithstanding clause (i) of Section 3), the
Shareholder may transfer the Shares or any part thereof to any third
party, subject to such third party executing this Undertaking, in
which event the Shareholder shall not remain liable for the
performance of all obligations of the Shareholder hereunder with
respect to such transferred Shares.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The Shareholder hereby
represents and warrants to Purchasers as follows:
2.1. The Shareholder has the full legal capacity, power and authority to
execute and deliver this Undertaking and to perform the transactions
contemplated hereby. This Undertaking constitutes the Shareholder's
valid and legally binding obligation enforceable against it in
accordance with its terms, except as such enforceability may be
limited by principles of public policy and subject to the laws of
general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive
relief or other equitable remedies.
2.2. The Shareholder has the requisite corporate power and authority to
execute and deliver this Undertaking and to perform and consummate the
transactions contemplated hereby. The execution, delivery and
performance of this Undertaking have been duly authorized by all
necessary corporate action on the part of the Shareholder and no other
corporate proceedings on the part of the Shareholder are necessary to
authorize this Undertaking.
2.3. Subject to the information set forth in the Shareholder's Schedules
13/D filed previously with the United States Securities and Exchange
Commission ("SEC"), the Shareholder has good and valid title to, and
is the sole lawful owner, beneficially and of record, of all of the
Shareholder Shares, which constitute the entire issued and outstanding
Ordinary Shares of the Company held by the Shareholder, free and clear
of any and all Encumbrances (as defined in the Merger Agreement)
relating to ownership and voting. Subject to the information set forth
in the Shareholder's Schedules 13/D filed previously with the United
States Securities and Exchange Commission ("SEC"), the Shareholder has
sole voting power and sole power to issue instructions with respect to
the matters set forth in this Undertaking, sole power of disposition
and sole power to agree to all of the matters set forth in this
Undertaking. The Shareholder has not sold, pledged or otherwise
transferred any interests in the Shareholder Shares to any person.
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2.4. The Shareholder Shares constitute all of the shares or other
securities of the Company over which any voting or dispositive power
is held by the Shareholder and Shareholder does not own, beneficially
or otherwise, directly or indirectly, any other share capital of, or
other securities, equity or ownership interest in the Company
(including, without limitation, (i) any outstanding options, warrants,
purchase rights, subscription rights, conversion rights, exchange
rights or other securities of the Company, or (ii) outstanding stock
appreciation rights, phantom stock or similar rights). The Shareholder
Shares are not subject to any shareholders agreement, voting
agreements, proxies, trusts or other agreement or understandings
relating to the voting or disposition thereof, which would prevent
Shareholder from performing its obligations hereunder. Any proxies
heretofore given in respect of the Shareholder Shares are not
irrevocable, and any such proxies are or shall be revoked by the
Closing.
2.5. The execution and delivery by the Shareholder of this Undertaking do
not, and the consummation of the transactions contemplated hereby will
not, require Shareholder to obtain or deliver any notice, consent,
waiver, approval, order or authorization or permit of, or
registration, declaration or filing with, or notification to, any
court, administrative agency, commission, governmental or regulatory
authority or any other person, that has not been, or will not be,
obtained or delivered by the Closing.
2.6. The execution and delivery by the Shareholder of this Undertaking do
not, and the consummation of the transactions contemplated hereby will
not, conflict with, or result in any violation of, or default under
(with or without notice or lapse of time, or both) or give rise to a
right of termination, cancellation, modification or acceleration of
any obligation or loss of any benefit, under the Articles of
Association of the Company, any agreement, law, rule, regulation,
order, judgment or decree applicable to the Shareholder or that apply
to the Shareholder Shares or by which the Shareholder Shares are
bound.
2.7. There is no suit, action, proceeding, claim or investigation, decree,
order, judgment or legal proceeding of any nature, pending, or, to
Shareholder's knowledge, threatened against it or the Shareholder
Shares, that seeks to prevent Shareholder from executing, delivering
or performing this Undertaking and the transactions contemplated
hereby, or that apply to the Shareholder Shares or by which the
Shareholder Shares are bound.
3. OTHER RESTRICTIONS. Unless the Merger Agreement is terminated pursuant to
Section 8.1 thereof, the Shareholder shall not, directly or indirectly, and
except as contemplated by or permitted by this Undertaking, (i) grant any
proxies or powers of attorney, deposit any Shareholder Shares into a voting
trust, enter into a voting agreement with respect to any Shareholder Shares
or transfer or otherwise dispose (or aim to transfer or otherwise dispose)
any Shareholder Shares; or (ii) take any action that would make any
representation or warranty of the Shareholder contained herein untrue or
incorrect in any material respect or have the effect of preventing or
disabling the Shareholder from performing the Shareholder's obligations
under this Undertaking.
4. ADDITIONAL SHARES. In the event of any stock split (bonus shares),
consolidation, share dividend (including any dividend or distribution of
securities convertible into share capital), reorganization,
reclassification, combination, recapitalization or other like change with
respect to the Shareholder Shares occurring after the date hereof and prior
to the Closing, all references in this Undertaking to specified numbers of
shares and all calculations provided for that are based upon numbers
affected thereby, shall be equitably adjusted to the extent necessary to
provide the parties the same economic effect as contemplated by this
Undertaking prior to such event.
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5. SPECIFIC ENFORCEMENT. Shareholder hereby acknowledges that monetary damages
may not be a sufficient or adequate remedy for any breach or violation of
any of its obligations under this Undertaking and that, in addition to any
other remedy which may be available to Purchasers hereunder or in law or
equity, and without any wavier or limitation with respect thereto, the
Purchasers shall be entitled to seek injunctive and other equitable relief,
including specific performance, with respect to any such breach or
violation and to enforce specifically the terms and provisions hereof, in
any court of competent jurisdiction. Any and all remedies herein expressly
conferred upon a party will be deemed cumulative with and not exclusive of
any other remedy conferred hereby, or by law or equity upon such party, and
the exercise by a party of any one remedy will not preclude the exercise of
any other remedy.
6. FURTHER ASSURANCES. Subject to the terms of this Undertaking and any
applicable law, the Shareholder, at the reasonable request of the
Purchasers, shall execute and deliver, or cause to be executed and
delivered, such other documents and instruments and do and perform such
other actions as may be necessary or desirable for effecting the
consummation of this Undertaking and the transactions contemplated hereby.
7. TERMINATION. This Undertaking shall automatically terminate upon
termination of the Merger Agreement pursuant to Section 8.1 thereof, in
which case this Undertaking shall forthwith become void and there shall be
no liability or obligation on the part of the Purchasers or the
Shareholder, or their respective employees, agents or shareholders, if
applicable, except that the provisions of Section 8 and this Section 7
shall remain in full force and effect and survive any termination of this
Undertaking pursuant to the terms of this Section 7.
8. GENERAL PROVISIONS.
8.1. EXPENSES. Each party shall bear its own costs and expenses incurred
with respect to the negotiation, execution, delivery and performance
of this Undertaking.
8.2. ENTIRE AGREEMENT. This Undertaking constitutes the full and entire
understanding and agreement between the parties with respect to the
subject matter hereof, and supersedes any prior understandings,
agreements, or representations by or among the parties, written or
oral, to the extent they relate in any way to the subject matter
hereof.
8.3. AMENDMENT; WAIVER. Any term of this Undertaking may be amended and the
observance of any term of this Undertaking may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Shareholder and
the Purchasers, except that the Purchasers may, to the extent legally
allowed, (i) extend the time for the performance of any of the
obligations of Shareholder hereunder, (ii) waive any inaccuracies in
the representations and warranties made by Shareholder contained
herein or in any document delivered pursuant hereto, and (iii) waive
compliance with any of the covenants, agreements or conditions for the
benefit of Purchasers contained herein.
8.4. PRESS RELEASES. No party shall issue any statement or communication to
any third party (other than their respective agents, partners,
affiliates and representatives that are bound by confidentiality
restrictions) regarding this Undertaking, its existence and content,
or the transactions contemplated hereby, including, if applicable, the
termination of this Undertaking and the reasons therefor, without the
consent of the other parties hereto, except as required to comply with
applicable legal requirements and the rules of any stock exchange and
except as required in connection with the Merger Agreement and the
transactions contemplated thereby.
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8.5. ASSIGNMENT. Subject to Section 1.3, neither this Undertaking, nor any
rights, interests or obligations under this Undertaking may be
assigned or transferred, in whole or in part, by operation of law or
otherwise by the Shareholder, without the prior consent in writing of
the Purchasers, and any such assignment without such prior written
consent shall be null and void. Subject to the foregoing, this
Undertaking shall inure to the benefit of, and be binding upon, and be
enforceable by, the parties hereto and their respective successors,
assigns, heirs, executors, and administrators.
8.6. GOVERNING LAW; JURISDICTION. This Undertaking shall be governed by and
construed in accordance with the laws of the State of Israel,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof. Each of the parties hereto
irrevocably consents to the exclusive jurisdiction and venue of any
competent court located in Tel-Aviv-Jaffa, Israel in connection with
any matter based upon or arising out of this Undertaking or the
matters contemplated herein, agrees that process may be served upon it
in any manner authorized by the laws of the State of Israel for such
persons and waives and covenants not to assert or plead any objection
which they might otherwise have to such jurisdiction and such process.
8.7. INTERPRETATION. When used herein: the words "include," "includes" and
"including" shall be deemed in each case to be followed by the words
"without limitation"; the words "herein," "hereof," "hereto" and
"hereunder" and words of similar import, shall refer to this
Undertaking a whole and not to any particular provision of this
Agreement; the word "person(s)" shall include an individual,
corporation, partnership, association, trust, enterprise or other
entity or organization, including a government or political
subdivision or an agency or instrumentality thereof; the phrase
"beneficial ownership" of any securities or "own" (and phrases of
similar import) shall mean beneficial ownership for purposes of Rule
13d-3 under the Exchange Act (and for the purposes of Rule
13d-3(d)(1)(i) as if the right to acquire beneficial ownership of such
security would have been within 60 days); the word "affiliate(s)" (and
words of similar import) shall mean as set forth in Rule 405
promulgated under the Securities Act of 1933, as amended: the word
"group" shall mean any group of persons acting together in the manner
described in Rule 13d-5(b)(1) of the Exchange Act; and the term
"Closing" shall have the meaning set forth in the Merger Agreement.
Unless the context otherwise requires, words denoting the singular
number only shall include the plural and vice versa. The headings in
this Undertaking are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this Undertaking.
The recitals and exhibits form part of this Undertaking and shall have
the same force and effect as if expressly set out in the body of this
Undertaking, and any reference to this Undertaking shall include the
exhibits hereto.
8.8. SEVERABILITY. If any provision of this Undertaking or the application
thereof becomes or is declared by a court or arbitrator of competent
jurisdiction to be invalid, illegal or unenforceable in any respect,
such provision will be enforced to the maximum extent possible given
the intent of the parties hereto. If such clause or provision cannot
be so enforced, such provision shall be stricken from this Undertaking
only with respect to such jurisdiction in which such clause or
provision cannot be enforced, and the remainder of this Undertaking
shall be enforced as if such invalid, illegal or unenforceable clause
or provision had (to the extent not enforceable) never been contained
in this Undertaking. In addition, if any particular provision
contained in this Undertaking shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or
subject, it shall be construed by limiting and reducing the scope of
such provision so that the provision is enforceable to the fullest
extent compatible with applicable law.
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8.9. RULES OF CONSTRUCTION. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this
Undertaking and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities
in an agreement or other document will be construed against the party
drafting such agreement or document.
8.10. NOTICES. All notices and other communications hereunder shall be in
writing and shall be shall be emailed, faxed or mailed by registered
or certified mail, postage prepaid, or otherwise delivered by hand or
by messenger, addressed to the parties at the following addresses (or
at such other address for a party as shall be specified by like
notice):
8.10.1. if to Purchasers, to:
00 Xxxx Xxxxxxxxxx Xxxxxx
Ziv Buildings (Building B)
Ramat Hahayal, Tel Aviv
Fax No.: 000-0-000-0000
Attention: Chief Executive Officer
Email address: xxxx.xxxxxxx@xxxxxx.xxx
with a mandatory copy to (which shall not constitute notice):
Xxxxxxxx Xxxxxxx & Xx.
0 Xxxxx Xxxxxx
Xxx Xxxx 00000
Israel
Fax No: 000-0-000-0000
Email address: xxxxx@xxxxx.xxx
xxxxxx@xxxxx.xxx
Attention: Xxxxxx X. Xxxx, Adv.
Xxxxx Xxxxx, Adv.
8.10.2. if to Shareholder, to:
_________________
with mandatory copies to (which shall not constitute notice):
Meitar, Liquornik, Geva & Lesham Xxxxxxxxx
00 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxx Xxx, 00000
Israel
Fax No.: 000-0-000-0000
Email address: xxxxxxxx@xxxxxx.xxx
Attention: Xxx Xxxxxxx, Adv.
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Any notice sent in accordance with this Section 8.10 shall be
effective (i) if mailed, three (3) business days after mailing, (ii)
if sent by messenger, upon delivery, and (iii) if sent via email or
facsimile, upon transmission and electronic confirmation of receipt
(or recipient's electronic "read receipt" in case of email) or (if
transmitted and received on a non-business day) on the first business
day following transmission and electronic confirmation of receipt (or
recipient's electronic "read receipt" in case of email).
8.11. COUNTERPARTS. This Undertaking may be executed in one or more
counterparts, each of which shall be deemed an original and
enforceable against the parties actually executing such counterpart,
and all of which together shall be considered one and the same
agreement, it being understood that all parties need not sign the same
counterpart. The exchange of an executed Undertaking (in counterparts
or otherwise) by facsimile transmission or by electronic delivery in
.pdf format or the like shall be sufficient to bind the parties to the
terms and conditions of this Undertaking, as an original.
- SIGNATURE PAGE FOLLOWS -
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IN WITNESS WHEREOF, the undersigned caused this Voting Undertaking to be
duly executed and delivered, as of this 22 day of October, 2009.
[NAME OF SHAREHOLDER]
By:
---------------------
Name:
Title:
Agreed and accepted:
CVIDYA NEYWEORKS, INC.
By:
---------------------
Name:
Title:
CVIDYA ACQUISITION LTD.
By:
---------------------
Name:
Title:
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