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Exhibit 3
VOTING AND EXCHANGE TRUST AGREEMENT
AGREEMENT dated as of April 5, 2000, among Amdocs Limited, a
corporation existing under the laws of Guernsey ("Amdocs"), Amdocs (Denmark)
ApS., a corporation existing under the laws of Denmark ("Parentco"), Amdocs
Holdings ULC, an unlimited liability company formed under the laws of Nova
Scotia ("Holdco"), Solect Technology Group Inc., a corporation existing under
the laws of New Brunswick (the "Company") and The Trust Company of Bank of
Montreal, a trust company existing under the laws of Canada (the "Trustee").
WHEREAS, pursuant to a Combination Agreement dated as of
February 28, 2000 (such agreement, as it may be amended or restated, is
hereinafter referred to as the "Combination Agreement"), among Amdocs, Parentco,
Holdco and the Company, such parties agreed that on the Effective Date (as
defined in the Combination Agreement), they would execute and deliver a Voting
and Exchange Trust Agreement substantially in the form of Exhibit 6.2(b)(ii)
thereto together with such other terms and conditions as may be agreed to by
such parties acting reasonably;
WHEREAS, pursuant to the share restructuring plan (the "Share
Restructuring") effected by articles of amendment (the "Articles of Amendment")
giving effect to the share restructuring plan (the "Share Restructuring Plan")
filed pursuant to the New Brunswick Business Corporations Act, as amended, each
issued and outstanding common share of the Company (a "Company Common Share")
was exchanged for .57281 issued and outstanding Exchangeable Non-Voting Shares
of the Company (the "Exchangeable Shares"), and thereafter, the Company's sole
issued and outstanding Class A Preferred Share was exchanged by the holder
thereof for one issued and outstanding Company Common Share;
WHEREAS, the above-mentioned Articles of Amendment set forth
the rights, privileges, restrictions and conditions (collectively, the
"Exchangeable Share Provisions") attaching to the Exchangeable Shares; and
WHEREAS, Amdocs is to provide voting rights in Amdocs to each
holder (other than Amdocs, its subsidiaries and Affiliates) from time to time of
Exchangeable Shares, such voting rights attaching to each Exchangeable Share to
be equivalent to the voting rights attaching to each ordinary voting share of
Amdocs share capital (collectively, "Amdocs Ordinary Shares");
WHEREAS, Holdco is to grant to and in favor of the holders
(other than Amdocs, its subsidiaries and Affiliates) from time to time of
Exchangeable Shares the right, in
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the circumstances set forth herein, to require Holdco to purchase from each such
holder all or any part of the Exchangeable Shares held by the holder;
WHEREAS, the parties desire to make appropriate provision and
to establish a procedure whereby voting rights in Amdocs shall be exercisable by
holders (other than Amdocs, its subsidiaries and Affiliates) from time to time
of Exchangeable Shares by and through the Trustee, which will hold legal title
to one Special Voting Share, L0.01 par value (the "Amdocs Special Voting
Share"), of Amdocs to which voting rights attach for the benefit of the holders
of Exchangeable Shares of the Company and whereby the rights to require Holdco
to purchase Exchangeable Shares from the holders thereof (other than Amdocs, its
subsidiaries and Affiliates) shall be exercisable by such holders from time to
time of Exchangeable Shares by and through the Trustee, which will hold legal
title to such rights for the benefit of such holders; and
WHEREAS, these recitals and any statements of fact in this
Agreement are made by the other parties hereto and not by the Trustee;
NOW, THEREFORE, in consideration of the respective covenants
and agreements provided in this Agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement, the following terms shall have the
following meanings:
"AFFILIATE" of any person means any other person directly or
indirectly controlled by, or under common control of, that person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control of"), as applied to any
person, means the possession by another person, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
first mentioned person, whether through the ownership of voting securities, by
contract or otherwise.
"AMDOCS ORDINARY SHARES" has the meaning ascribed thereto in
the recitals hereto.
"AMDOCS CONSENT" has the meaning ascribed thereto in Section
4.2 hereof.
"AMDOCS MEETING" has the meaning ascribed thereto in Section
4.2 hereof.
"AMDOCS SPECIAL VOTING SHARE" has the meaning ascribed thereto
in the recitals hereto.
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"AMDOCS SUCCESSOR" has the meaning ascribed thereto in Section
11.1(a) hereof.
"AUTOMATIC EXCHANGE RIGHTS" means the benefit of the
obligation of Holdco to effect the automatic exchange of Amdocs Ordinary Shares
for Exchangeable Shares pursuant to Section 5.12 hereof.
"BOARD OF DIRECTORS" means the Board of Directors of the
Company.
"BUSINESS DAY" means a day other than a Saturday, a Sunday or
a statutory holiday in Toronto, Ontario or New York, New York.
"CANADIAN DOLLAR EQUIVALENT" means in respect of an amount
expressed in a foreign currency (the "Foreign Currency Amount") at any date the
product obtained by multiplying (a) the Foreign Currency Amount by (b) the noon
spot exchange rate on such date for such foreign currency expressed in Canadian
dollars as reported by the Bank of Canada or, in the event such spot exchange
rate is not available, such exchange rate on such date for such foreign currency
expressed in Canadian dollars as may be deemed by the Board of Directors to be
appropriate for such purpose.
"COMPANY COMMON SHARES" has the meaning ascribed thereto in
the recitals hereto.
"COURT" means the Court of Queen's Bench of New Brunswick.
"CURRENT MARKET PRICE" means, in respect of an Amdocs Ordinary
Share on any date, the Canadian Dollar Equivalent of the average closing price
(computed and rounded to the third decimal point) of Amdocs Ordinary Shares
during a period of 20 consecutive trading days ending not more than three
trading days before such date on the New York Stock Exchange, or, if Amdocs
Ordinary Shares are not then listed on the New York Stock Exchange, on such
other stock exchange or automated quotation system on which Amdocs Ordinary
Shares are listed or quoted, as the case may be, as may be selected by the Board
of Directors for such purpose; provided, however, that if in the opinion of the
Board of Directors the public distribution or trading activity of Amdocs
Ordinary Shares during such period does not create a market which reflects the
fair market value of an Amdocs Ordinary Share, then the Current Market Price of
an Amdocs Ordinary Share shall be determined by the Board of Directors based
upon the advice of such qualified independent financial advisors as the Board of
Directors may deem to be appropriate, and provided further that any such
selection, opinion or determination by the Board of Directors shall be
conclusive and binding.
"EXCHANGE RIGHT" has the meaning ascribed thereto in Section
5.1 hereof.
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"EXCHANGEABLE SHARE PROVISIONS" means the rights, privileges,
restrictions and conditions attaching to the Exchangeable Shares.
"EXCHANGEABLE SHARES" has the meaning ascribed thereto in the
recitals hereto.
"HOLDER VOTES" has the meaning ascribed thereto in Section 4.2
hereof.
"HOLDERS" means the registered holders from time to time of
Exchangeable Shares, other than Amdocs and its Affiliates.
"INSOLVENCY EVENT" means the institution by the Company of any
proceeding to be adjudicated a bankrupt or insolvent or to be dissolved or wound
up, or the consent of the Company to the institution of bankruptcy, insolvency,
dissolution or winding up proceedings against it, or the filing of a petition,
answer or consent seeking dissolution or winding up under any bankruptcy,
insolvency or analogous laws, including without limitation the Companies
Creditors' Arrangement Act (Canada) and the Bankruptcy and Insolvency Act
(Canada), and the failure by the Company to contest in good faith any such
proceedings commenced in respect of the Company within 30 days of becoming aware
thereof, or the consent by the Company to the filing of any such petition or to
the appointment of a receiver, or the making by the Company of a general
assignment for the benefit of creditors, or the admission in writing by the
Company of its inability to pay its debts generally as they become due, or the
Company not being permitted, pursuant to solvency requirements of applicable
law, to redeem any Retracted Shares pursuant to Section 6.6 of the Exchangeable
Share Provisions.
"ITA" means the Income Tax Act (Canada), as amended.
"LIQUIDATION CALL RIGHT" has the meaning ascribed thereto in
Section 1.1 of the Share Restructuring Plan.
"LIQUIDATION EVENT" has the meaning ascribed thereto in
Section 5.12(b) hereof.
"LIQUIDATION EVENT EFFECTIVE DATE" has the meaning ascribed
thereto in Section 5.12(c) hereof.
"LIST" has the meaning ascribed thereto in Section 4.6 hereof.
"NBBCA" means the New Brunswick Business Corporations Act, as
amended.
"OFFICER'S CERTIFICATE" means, with respect to Amdocs or the
Company, as the case may be, a certificate signed by any one of the Chairman of
the Board, the Vice-Chairman of the Board, the President, any Vice-President or
any other senior officer of Amdocs or the Company, as the case may be.
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"PERSON" includes an individual, partnership, corporation,
company, unincorporated syndicate or organization, trust, trustee, executor,
administrator and other legal representative or legal entity.
"REDEMPTION CALL RIGHT" has the meaning ascribed thereto in
Section 1.1 of the Exchangeable Share Provisions.
"RETRACTED SHARES" has the meaning ascribed thereto in Section
5.7 hereof.
"RETRACTION CALL RIGHT" has the meaning ascribed thereto in
Section 6.1 of the Exchangeable Share Provisions.
"SHARE RESTRUCTURING" has the meaning ascribed thereto in the
recitals hereto.
"SHARE RESTRUCTURING PLAN" has the meaning ascribed thereto in
the recitals hereto.
"SUPPORT AGREEMENT" means that certain Support Agreement dated
as of the date hereof among the Company, Amdocs, Parentco and Holdco.
"TRUST" means the trust created by this agreement.
"TRUST ESTATE" means the Voting Share, any other securities,
the Exchange Right, the Automatic Exchange Rights and any money or other
property which may be held by the Trustee from time to time pursuant to this
Agreement.
"TRUSTEE" means The Trust Company of Bank of Montreal and,
subject to the provisions of Article 10 hereof, includes any successor trustee
or permitted assigns.
"VOTING RIGHTS" means the voting rights attached to the Voting
Share.
"VOTING SHARE" means the one Amdocs Special Voting Share
issued by Amdocs to and deposited with the Trustee, which entitles the holder of
record to a number of votes at meetings of holders of Amdocs Ordinary Shares
equal to the number of Exchangeable Shares outstanding from time to time other
than Exchangeable Shares held by Amdocs, its direct or indirect subsidiaries and
its Affiliates.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The division of this Agreement into articles, sections and
paragraphs and the insertion of headings are for convenience of reference only
and shall not affect the construction or interpretation of this Agreement.
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1.3 NUMBER, GENDER, ETC.
Words importing the singular number only shall include the
plural and vice versa. Words importing the use of any gender shall include all
genders.
1.4 DATE FOR ANY ACTION
If any date on which any action is required to be taken under
this Agreement is not a Business Day, such action shall be required to be taken
on the next succeeding Business Day.
ARTICLE 2
PURPOSE OF AGREEMENT
2.1 ESTABLISHMENT OF TRUST
The purpose of this Agreement is to create the Trust for the
benefit of the Holders, as herein provided. The Trustee will hold the Voting
Share in order to enable the Trustee to exercise the Voting Rights and will hold
the Exchange Right and the Automatic Exchange Rights in order to enable the
Trustee to exercise such rights, and any money or other property comprising the
Trust Estate, in each case as trustee for and on behalf of the Holders as
provided in this Agreement.
ARTICLE 3
VOTING SHARE
3.1 ISSUE AND OWNERSHIP OF THE VOTING SHARE
Amdocs hereby issues to and deposits with the Trustee the
Voting Share to be hereafter held of record by the Trustee as trustee for and on
behalf of, and for the use and benefit of, the Holders and in accordance with
the provisions of this Agreement. Amdocs hereby acknowledges receipt from the
Trustee as trustee for and on behalf of the Holders of good and valuable
consideration (and the adequacy thereof) for the issuance of the Voting Share by
Amdocs to the Trustee. During the term of the Trust and subject to the terms and
conditions of this Agreement, the Trustee shall possess and be vested with full
legal ownership of the Voting Share and shall be entitled to exercise all of the
rights and powers of an owner with respect to the Voting Share, provided that
the Trustee shall:
(a) hold the Voting Share and the legal title thereto as trustee
solely for the use and benefit of the Holders in accordance
with the provisions of this Agreement; and
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(b) except as specifically authorized by this Agreement, have no
power or authority to sell, transfer, vote or otherwise deal
in or with the Voting Share and the Voting Share shall not be
used or disposed of by the Trustee for any purpose other than
the purposes for which the Trust is created pursuant to this
Agreement.
3.2 LEGENDED SHARE CERTIFICATES
The Company will cause each certificate representing
Exchangeable Shares to bear an appropriate legend notifying the Holders of their
right to instruct the Trustee with respect to the exercise of the Voting Rights
with respect to the Exchangeable Shares held by a Holder.
3.3 SAFE KEEPING OF CERTIFICATE
The certificate representing the Voting Share shall at all
times be held in safe keeping by the Trustee.
ARTICLE 4
EXERCISE OF VOTING RIGHTS
4.1 VOTING RIGHTS
The Trustee, as the holder of record of the Voting Share,
shall be entitled to all of the Voting Rights, including the right to consent to
or to vote in person or by proxy the Voting Share, on any matter, question,
proposal or proposition whatsoever that may properly come before the
shareholders of Amdocs at an Amdocs Meeting or in connection with an Amdocs
Consent. The Voting Rights shall be and remain vested in and exercised by the
Trustee. Subject to Section 7.15 hereof, the Trustee shall exercise the Voting
Rights only on the basis of instructions received pursuant to this Article 4
from Holders entitled to instruct the Trustee as to the voting thereof at the
time at which an Amdocs Consent is sought or an Amdocs Meeting is held. To the
extent that no instructions are received from a Holder with respect to the
Voting Rights to which such Holder is entitled, the Trustee shall not exercise
or permit the exercise of such Holder's Voting Rights.
4.2 NUMBER OF VOTES
With respect to all meetings of shareholders of Amdocs at
which holders of Amdocs Ordinary Shares are entitled to vote (an "Amdocs
Meeting") and with respect to all written consents sought by Amdocs from its
shareholders including the holders of shares of Amdocs Ordinary Shares (an
"Amdocs Consent"), each Holder shall be entitled to instruct the Trustee to cast
and exercise, in the manner instructed, one of the votes comprised in the Voting
Rights for each Exchangeable Share owned of record by such Holder on the record
date established by Amdocs or by applicable law for such Amdocs Meeting or
Amdocs Consent, as
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the case may be (the "Holder Votes") in respect of each matter, question,
proposal or proposition to be voted on at such Amdocs Meeting or to be consented
to in connection with such Amdocs Consent.
4.3 MAILINGS TO SHAREHOLDERS
With respect to each Amdocs Meeting and Amdocs Consent, the
Trustee will mail or cause to be mailed (or otherwise communicate in the same
manner as Amdocs utilizes in communications to holders of Amdocs Ordinary
Shares) to each of the Holders named in the List on the same day as the initial
mailing or notice (or other communication) with respect thereto is given by
Amdocs to its shareholders:
(a) a copy of such notice, together with any proxy or information
statement and related materials to be provided to shareholders
of Amdocs;
(b) a statement that such Holder is entitled to instruct the
Trustee as to the exercise of the Holder Votes with respect to
such Amdocs Meeting or Amdocs Consent, as the case may be, or,
pursuant to Section 4.7 hereof, to attend such Amdocs Meeting
and to exercise personally the Holder Votes thereat;
(c) a statement as to the manner in which such instructions may be
given to the Trustee, including an express indication that
instructions may be given to the Trustee to give:
(i) a proxy to such Holder or his designee to exercise
personally the Holder Votes; or
(ii) a proxy to a designated agent or other representative
of the management of Amdocs to exercise such Holder
Votes;
(d) a statement that if no such instructions are received from the
Holder, the Holder Votes to which such Holder is entitled will
not be exercised;
(e) a form of direction whereby the Holder may so direct and
instruct the Trustee as contemplated herein; and
(f) a statement of (i) the time and date by which such
instructions must be received by the Trustee in order to be
binding upon it, which in the case of an Amdocs Meeting shall
not be earlier than the close of business on the second
Business Day prior to such meeting, and (ii) the method for
revoking or amending such instructions.
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The materials referred to above are to be provided by Amdocs to the Trustee, but
shall be subject to review and comment by the Trustee. For the purpose of
determining Holder Votes to which a Holder is entitled in respect of any such
Amdocs Meeting or Amdocs Consent, the number of Exchangeable Shares owned of
record by the Holder shall be determined at the close of business on the record
date established by Amdocs or by applicable law for purposes of determining
shareholders entitled to vote at such Amdocs Meeting or to give written consent
in connection with such Amdocs Consent. Amdocs will notify the Trustee in
writing of any decision of the Board of Directors of Amdocs with respect to the
calling of any such Amdocs Meeting or the seeking of any such Amdocs Consent and
shall provide all necessary information and materials to the Trustee in each
case promptly and in any event in sufficient time to enable the Trustee to
perform its obligations contemplated by this Section 4.3.
4.4 COPIES OF SHAREHOLDER INFORMATION
Amdocs will deliver to the Trustee copies of all proxy
materials, (including notices of Amdocs Meetings but excluding proxies to vote
Amdocs Ordinary Shares), information statements, reports (including without
limitation all interim and annual financial statements) and other written
communications that, in each case, are to be distributed from time to time to
holders of Amdocs Ordinary Shares in sufficient quantities and in sufficient
time so as to enable the Trustee to send those materials to each Holder at the
same time as such materials are first sent to holders of Amdocs Ordinary Shares.
The Trustee will mail or otherwise send to each Holder, at the expense of
Amdocs, copies of all such materials (and all materials specifically directed to
the Holders or to the Trustee for the benefit of the Holders by Amdocs) received
by the Trustee from Amdocs at the same time as such materials are first sent to
holders of Amdocs Ordinary Shares. The Trustee will also make available for
inspection by any Holder at the Trustee's principal office in the city of
Toronto, Ontario all proxy materials, information statements, reports and other
written communications that are:
(a) received by the Trustee as the registered holder of the Voting
Share and made available by Amdocs generally to the holders of
Amdocs Ordinary Shares; or
(b) specifically directed by Amdocs to the Holders or to the
Trustee for the benefit of the Holders.
4.5 OTHER MATERIALS
Immediately after receipt by Amdocs or any shareholder of
Amdocs of any material sent or given generally to the holders of Amdocs Ordinary
Shares by or on behalf of a third party, including without limitation dissident
proxy and information circulars (and related information and material) and
tender and exchange offer circulars (and related information and material),
Amdocs shall use its best efforts to obtain and deliver to the Trustee copies
thereof in sufficient quantities so as to enable the Trustee to forward such
material (unless the same has
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been provided directly to Holders by such third party) to each Holder as soon as
possible thereafter. As soon as practicable after receipt thereof, the Trustee
will mail or otherwise send to each Holder, at the expense of Amdocs, copies of
all such materials received by the Trustee from Amdocs. The Trustee will also
make copies of all such materials available for inspection by any Holder at the
Trustee's principal office in the city of Toronto, Ontario.
4.6 LIST OF PERSONS ENTITLED TO VOTE
The Company shall, (a) prior to each annual, general and
special Amdocs Meeting or the seeking of any Amdocs Consent and (b) forthwith
upon each request made at any time by the Trustee in writing, prepare or cause
to be prepared a list (a "List") of the names and addresses of the Holders
arranged in alphabetical order and showing the number of Exchangeable Shares
held of record by each such Holder, in each case at the close of business on the
date specified by the Trustee in such request or, in the case of a List prepared
in connection with an Amdocs Meeting or an Amdocs Consent, at the close of
business on the record date established by Amdocs or pursuant to applicable law
for determining the holders of Amdocs Ordinary Shares entitled to receive notice
of and/or to vote at such Amdocs Meeting or to give consent in connection with
such Amdocs Consent. Each such List shall be delivered to the Trustee promptly
after receipt by the Company of such request or after the record date for such
meeting or seeking of consent, as the case may be, is set and in any event
within sufficient time as to enable the Trustee to perform its obligations under
this Agreement. Amdocs agrees to give the Company written notice (with a copy to
the Trustee) of the calling of any Amdocs Meeting or the seeking of any Amdocs
Consent, together with the record dates therefor, sufficiently prior to the date
of the calling of such meeting or seeking of such consent so as to enable the
Company to perform its obligations under this Section 4.6.
4.7 ENTITLEMENT TO DIRECT VOTES
Any Holder named in a List prepared in connection with any
Amdocs Meeting or any Amdocs Consent will be entitled (a) to instruct the
Trustee in the manner described in Section 4.3 hereof with respect to the
exercise of the Holder Votes to which such Holder is entitled or (b) to attend
such meeting and personally to exercise thereat (or to exercise with respect to
any written consent), as the proxy of the Trustee, the Holder Votes to which
such Holder is entitled.
4.8 VOTING BY TRUSTEE, AND ATTENDANCE OF TRUSTEE REPRESENTATIVE AT A
MEETING
(a) In connection with each Amdocs Meeting and Amdocs Consent, the
Trustee shall exercise, either in person or by proxy, in
accordance with the instructions received from a Holder
pursuant to Section 4.3 hereof, the Holder Votes as to which
such Holder is entitled to direct the vote (or any lesser
number thereof as may be set forth in the instructions);
provided, however, that such written instructions are
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received by the Trustee from the Holder prior to the time and
date fixed by it for receipt of such instructions in the
notice given by the Trustee to the Holder pursuant to Section
4.3 hereof.
(b) The Trustee shall cause such representatives as are empowered
by it to sign and deliver, on behalf of the Trustee, proxies
for Voting Rights to attend each Amdocs Meeting. Upon
submission by a Holder (or its designee) of identification
satisfactory to the Trustee's representatives, and at the
Holder's request, such representatives shall sign and deliver
to such Holder (or its designee) a proxy to exercise
personally the Holder Votes as to which such Holder is
otherwise entitled hereunder to direct the vote, if such
Holder either (i) has not previously given the Trustee
instructions pursuant to Section 4.3 hereof in respect of such
meeting, or (ii) submits to the Trustee's representatives
written revocation of any such previous instructions. At such
meeting, the Holder exercising such Holder Votes shall have
the same rights as the Trustee to speak at the meeting in
respect of any matter, question or proposition, to vote by way
of ballot at the meeting in respect of any matter, question or
proposition and to vote at such meeting by way of a show of
hands in respect of any matter, question or proposition.
4.9 DISTRIBUTION OF WRITTEN MATERIALS
Any written materials distributed by the Trustee to the
Holders pursuant to this Agreement shall be delivered or sent by mail (or
otherwise communicated in the same manner as Amdocs utilizes in communications
to holders of Amdocs Ordinary Shares) to each Holder at its address as shown on
the books of the Company. The Company shall provide or cause to be provided to
the Trustee for this purpose, on a timely basis and without charge or other
expense:
(a) a current List; and
(b) upon the request of the Trustee, mailing labels to enable the
Trustee to carry out its duties under this Agreement.
4.10 TERMINATION OF VOTING RIGHTS
The rights of a Holder with respect to the Holder Votes
exercisable in respect of the Exchangeable Shares held by such Holder, including
the right to instruct the Trustee as to the voting of or to vote personally such
Holder Votes, shall be deemed to be surrendered by the Holder to Amdocs or
Holdco, as the case may be, and such Holder Votes and the Voting Rights
represented thereby shall cease immediately upon the delivery by such holder to
the Trustee of the certificates representing such Exchangeable Shares in
connection with the exercise by the Holder of the Exchange Right or the
occurrence of the automatic exchange of Exchangeable Shares for Amdocs Ordinary
Shares, as specified in Article 5 hereof (unless, in either case,
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Holdco shall not have delivered the requisite Amdocs Ordinary Shares issuable in
exchange therefor to the Trustee for delivery to the Holders), or upon the
retraction or redemption of Exchangeable Shares pursuant to Article 6 or Article
7 of the Exchangeable Share Provisions, or upon the effective date of the
liquidation, dissolution or winding-up of the Company pursuant to Article 5 of
the Exchangeable Share Provisions, or upon the purchase of Exchangeable Shares
from the holder thereof by Holdco (or Amdocs or Parentco) pursuant to the
exercise by such person of the Retraction Call Right, the Redemption Call Right
or the Liquidation Call Right.
ARTICLE 5
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE
5.1 GRANT AND OWNERSHIP OF THE EXCHANGE RIGHT
Holdco hereby grants to the Trustee as trustee for and on
behalf of, and for the use and benefit of, the Holders (a) the right (the
"Exchange Right"), upon the occurrence and during the continuance of an
Insolvency Event, to require Holdco to purchase from each or any Holder all or
any part of the Exchangeable Shares held by the Holder and (b) the Automatic
Exchange Rights, all in accordance with the provisions of this Agreement. Holdco
hereby acknowledges receipt from the Trustee as trustee for and on behalf of the
Holders of good and valuable consideration (and the adequacy thereof) for the
grant of the Exchange Right and the Automatic Exchange Rights by Holdco to the
Trustee. During the term of the Trust and subject to the terms and conditions of
this Agreement, the Trustee shall possess and be vested with full legal
ownership of the Exchange Right and the Automatic Exchange Rights and shall be
entitled to exercise all of the rights and powers of an owner with respect to
the Exchange Right and the Automatic Exchange Rights, provided that the Trustee
shall:
(a) hold the Exchange Right and the Automatic Exchange Rights and
the legal title thereto as trustee solely for the use and
benefit of the Holders in accordance with the provisions of
this Agreement; and
(b) except as specifically authorized by this Agreement, have no
power or authority to exercise or otherwise deal in or with
the Exchange Right or the Automatic Exchange Rights, and the
Trustee shall not exercise any such rights for any purpose
other than the purposes for which this Trust is created
pursuant to this Agreement.
5.2 LEGENDED SHARE CERTIFICATES
The Company will cause each certificate representing
Exchangeable Shares to bear an appropriate legend notifying the Holders of:
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(a) their right to instruct the Trustee with respect to the
exercise of the Exchange Right in respect of the Exchangeable
Shares held by a Holder; and
(b) the Automatic Exchange Rights.
5.3 GENERAL EXERCISE OF EXCHANGE RIGHTS
The Exchange Right shall be and remain vested in and exercised
by the Trustee. Subject to Section 7.15 hereof, the Trustee shall exercise the
Exchange Right only on the basis of instructions received pursuant to this
Article 5 from Holders entitled to instruct the Trustee as to the exercise
thereof. To the extent that no instructions are received from a Holder with
respect to the Exchange Right, the Trustee shall not exercise or permit the
exercise of the Exchange Right.
5.4 PURCHASE PRICE
The purchase price payable by Holdco for each Exchangeable
Share to be purchased by Holdco under the Exchange Right shall be an amount per
share equal to (a) the Current Market Price of an Amdocs Ordinary Share on the
last Business Day prior to the day of closing of the purchase and sale of such
Exchangeable Share under the Exchange Right plus (b) an additional amount
equivalent to the full amount of all dividends declared and unpaid on each such
Exchangeable Share (provided that if the record date for any such declared and
unpaid dividends occurs on or after the day of closing of such purchase and sale
the purchase price shall not include such additional amount equivalent to the
declared and unpaid dividends). In connection with each exercise of the Exchange
Right, Holdco will provide to the Trustee an Officer's Certificate setting forth
the calculation of the purchase price for each Exchangeable Share. The purchase
price for each such Exchangeable Share so purchased may be satisfied only by
Amdocs issuing and delivering or causing to be delivered to the Trustee, on
behalf of the relevant Holder, one Amdocs Ordinary Share and a check for the
balance, if any, of the purchase price without interest (but less any amounts
withheld pursuant to Section 5.13).
5.5 EXERCISE INSTRUCTIONS
Subject to the terms and conditions herein set forth, a Holder
shall be entitled, upon the occurrence and during the continuance of an
Insolvency Event, to instruct the Trustee to exercise the Exchange Right with
respect to all or any part of the Exchangeable Shares registered in the name of
such Holder on the books of the Company. To cause the exercise of the Exchange
Right by the Trustee, the Holder shall deliver to the Trustee, in person or by
mail, at its principal office in Toronto, Ontario or at such other places in
Canada as the Trustee may from time to time designate by written notice to the
Holders, the certificates representing the Exchangeable Shares which such Holder
desires Holdco to purchase, duly endorsed in blank, and accompanied by such
other documents and instruments as may be required to effect a transfer of
Exchangeable Shares under the NBBCA and the by-laws of the Company and such
additional documents and
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instruments as the Trustee may reasonably require together with (a) a duly
completed form of notice of exercise of the Exchange Right, contained on the
reverse of or attached to the Exchangeable Share certificates, stating (i) that
the Holder thereby instructs the Trustee to exercise the Exchange Right so as to
require Holdco to purchase from the Holder the number of Exchangeable Shares
specified therein, (ii) that such Holder has good title to and owns all such
Exchangeable Shares to be acquired by Holdco free and clear of all liens, claims
and encumbrances, (iii) the names in which the certificates representing Amdocs
Ordinary Shares issuable in connection with the exercise of the Exchange Right
are to be issued and (iv) the names and addresses of the persons to whom such
new certificates should be delivered and (b) payment (or evidence satisfactory
to the Trustee, the Company, Amdocs and Holdco of payment) of the taxes (if any)
payable as contemplated by Section 5.8 of this Agreement. If only a part of the
Exchangeable Shares represented by any certificate or certificates delivered to
the Trustee are to be purchased by Holdco under the Exchange Right, a new
certificate for the balance of such Exchangeable Shares shall be issued by
Amdocs to the holder at the expense of the Company.
5.6 DELIVERY OF AMDOCS ORDINARY SHARES; EFFECT OF EXERCISE
Promptly after receipt of the certificates representing the
Exchangeable Shares which the Holder desires Holdco to purchase under the
Exchange Right (together with such documents and instruments of transfer and a
duly completed form of notice of exercise of the Exchange Right (and payment of
taxes, if any, payable as contemplated in Section 5.8 hereof or evidence
thereof)), duly endorsed in blank, the Trustee shall notify Holdco, Amdocs and
the Company of its receipt of the same, which notice to Holdco, Amdocs and the
Company shall constitute exercise of the Exchange Right by the Trustee on behalf
of the holder of such Exchangeable Shares, and Holdco shall immediately
thereafter deliver or cause to be delivered to the Trustee, for delivery to the
Holder of such Exchangeable Shares (or to such other persons, if any, properly
designated by such Holder), the certificates for the number of Amdocs Ordinary
Shares issuable in connection with the exercise of the Exchange Right, which
shares shall be duly issued and fully paid and non-assessable and shall be free
and clear of any lien, claim or encumbrance, and checks for the balance, if any,
of the total purchase price therefor without interest, but less any amounts
withheld pursuant to Section 5.13 hereof; provided, however, that no such
delivery shall be made unless and until the Holder requesting the same shall
have paid (or provided evidence satisfactory to the Trustee, the Company, Amdocs
and Holdco of the payment of) the taxes (if any) payable as contemplated by
Section 5.8 of this Agreement. Immediately upon the giving of notice by the
Trustee to Holdco, Amdocs and the Company of the exercise of the Exchange Right,
as provided in this Section 5.6, the closing of the transaction of purchase and
sale contemplated by the Exchange Right shall be deemed to have occurred, and
the Holder of such Exchangeable Shares shall be deemed to have transferred to
Holdco all of its right, title and interest in and to such Exchangeable Shares
and in the related interest in the Trust Estate and shall cease to be a holder
of such Exchangeable Shares and shall not be entitled to exercise any of the
rights of a holder in respect thereof, other than the right to receive his
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proportionate part of the total purchase price therefor, unless the requisite
number of Amdocs Ordinary Shares (together with a check for the balance, if any,
of the total purchase price therefor without interest) is not allotted and
delivered by Holdco to the Trustee, for delivery to such Holder (or to such
other persons, if any, properly designated by such Holder), within five Business
Days of the date of the giving of such notice by the Trustee, in which case the
rights of the Holder shall remain unaffected until such Amdocs Ordinary Shares
are so allotted and delivered by Holdco and any such check is so delivered and
paid. Upon delivery by Holdco to the Trustee of such Amdocs Ordinary Shares, the
Trustee shall deliver such Amdocs Ordinary Shares to such Holder (or to such
other persons, if any, properly designated by such Holder). Concurrently with
such Holder ceasing to be a holder of Exchangeable Shares, the Holder shall be
considered and deemed for all purposes to be the holder of the Amdocs Ordinary
Shares delivered to it pursuant to the Exchange Right.
5.7 EXERCISE OF EXCHANGE RIGHT SUBSEQUENT TO RETRACTION
In the event that a Holder has exercised its right under
Article 6 of the Exchangeable Share Provisions to require the Company to redeem
any or all of the Exchangeable Shares held by the Holder (the "Retracted
Shares") and is notified by the Company pursuant to Section 6.7 of the
Exchangeable Share Provisions that the Company will not be permitted as a result
of solvency requirements of applicable law to redeem all such Retracted Shares,
provided that Holdco shall not have exercised the Retraction Call Right with
respect to the Retracted Shares and that the Holder has not revoked the
retraction request delivered by the Holder to the Company pursuant to Section
6.1 of the Exchangeable Share Provisions, the retraction request will constitute
and will be deemed to constitute notice from the Holder to the Trustee
instructing the Trustee to exercise the Exchange Right with respect to those
Retracted Shares which the Company is unable to redeem. In any such event, the
Company hereby agrees with the Trustee and in favor of the Holder immediately to
notify the Trustee of such prohibition against the Company redeeming all of the
Retracted Shares and immediately to forward or cause to be forwarded to the
Trustee all relevant materials delivered by the Holder to the Company or to the
transfer agent of the Exchangeable Shares (including without limitation a copy
of the retraction request delivered pursuant to Section 6.1 of the Exchangeable
Share Provisions) in connection with such proposed redemption of the Retracted
Shares and the Trustee will thereupon exercise the Exchange Right with respect
to the Retracted Shares that the Company is not permitted to redeem and will
require Holdco to purchase such shares in accordance with the provisions of this
Article 5.
5.8 STAMP OR OTHER TRANSFER TAXES
Upon any sale of Exchangeable Shares to Holdco pursuant to the
Exchange Right or the Automatic Exchange Rights, the share certificate or
certificates representing Amdocs Ordinary Shares to be delivered in connection
with the payment of the total purchase price therefor shall be issued in the
name of the Holder of the Exchangeable Shares so sold or in such
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names as such Holder may otherwise direct in writing without charge to the
holder of the Exchangeable Shares so sold, provided, however, that such Holder
(a) shall pay (and neither Holdco, Amdocs, the Company nor the Trustee shall be
required to pay) any documentary, stamp, transfer or other similar taxes that
may be payable in respect of any transfer involved in the issuance or delivery
of such shares to a person other than such Holder or (b) shall have established
to the satisfaction of the Trustee, Amdocs, Holdco and the Company that such
taxes, if any, have been paid.
5.9 NOTICE OF INSOLVENCY EVENT
Immediately upon the occurrence of an Insolvency Event or any
event which with the giving of notice or the passage of time or both would be an
Insolvency Event, the Company and Amdocs shall give written notice thereof to
the Trustee. As soon as practicable after receiving notice from the Company and
Amdocs or from any other person of the occurrence of an Insolvency Event, the
Trustee will mail to each Holder, at the expense of Amdocs, a notice of such
Insolvency Event in the form provided by Amdocs, which notice shall contain a
brief statement of the right of the Holders with respect to the Exchange Right.
5.10 QUALIFICATION OF AMDOCS ORDINARY SHARES
Amdocs covenants that if any Amdocs Ordinary Shares to be
issued and delivered pursuant to the Exchange Right or the Automatic Exchange
Rights require registration or qualification with or approval of or the filing
of any document including any prospectus or similar document or the taking of
any proceeding with or the obtaining of any order, ruling or consent from any
governmental or regulatory authority under any Canadian or United States
federal, provincial or state law or regulation or pursuant to the rules and
regulations of any regulatory authority or the fulfillment of any other Canadian
or United States federal, provincial or state legal requirement (collectively,
the "Applicable Laws") before such shares may be delivered by Holdco to the
initial Holder thereof, Amdocs will in good faith expeditiously take all such
actions and do all such things as are necessary or desirable to cause such
shares of Amdocs Ordinary Shares to be and remain duly registered, qualified or
approved. Amdocs will in good faith expeditiously take all such actions and do
all such things as are reasonably necessary or desirable, pursuant to the terms
of the Combination Agreement to cause all shares of Amdocs Ordinary Shares to be
delivered pursuant to the Exchange Right or the Automatic Exchange Rights to be
listed, quoted or posted for trading on all stock exchanges and quotation
systems on which such shares have been listed by Amdocs and remain listed,
quoted or posted for trading at such time.
5.11 RESERVATION OF AMDOCS ORDINARY SHARES
Amdocs hereby represents, warrants and covenants for the
benefit of the holders of the Exchangeable Shares that it has irrevocably
reserved for issuance and will at all times keep
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available, free from pre-emptive and other rights, out of its authorized and
unissued capital stock such number of Amdocs Ordinary Shares (a) as is equal to
the sum of (i) the number of Exchangeable Shares issued and outstanding from
time to time and (ii) the number of Exchangeable Shares issuable upon the
exercise of all rights to acquire Exchangeable Shares outstanding from time to
time and (b) as are now and may hereafter be required to enable and permit the
Company and Holdco to meet their respective obligations hereunder, under the
Support Agreement, under the Exchangeable Share Provisions and under any other
security or commitment pursuant to which Amdocs or Holdco may now or hereafter
be required to issue or deliver Amdocs Ordinary Shares to Holders.
5.12 AUTOMATIC EXCHANGE ON LIQUIDATION OF PARENT
(a) Amdocs will give the Trustee written notice of each of the
following events at the time set forth below:
(i) in the event of any determination by the Board of
Directors of Amdocs to institute voluntary
liquidation, dissolution or winding-up proceedings
with respect to Amdocs or to effect any other
distribution of assets of Amdocs among its
shareholders for the purpose of winding up its
affairs, at least 60 days prior to the proposed
effective date of such liquidation, dissolution,
winding-up or other distribution; and
(ii) as soon as practicable following the earlier of (A)
receipt by Amdocs of notice of, and (B) Amdocs
otherwise becoming aware of any threatened or
instituted claim, suit, petition or other proceedings
with respect to the involuntary liquidation,
dissolution or winding up of Amdocs or to effect any
other distribution of assets of Amdocs among its
shareholders for the purpose of winding up its
affairs, in each case where Amdocs has failed to
contest in good faith any such proceeding within 30
days of becoming aware thereof.
(b) As soon as practicable following receipt by the Trustee from
Amdocs of notice of any event (a "Liquidation Event")
contemplated by Section 5.12(a)(i) or 5.12(a)(ii) above, the
Trustee will give notice thereof to the Holders. Such notice
shall include a brief description of the automatic exchange of
Exchangeable Shares for Amdocs Ordinary Shares provided for in
Section 5.12(c) below.
(c) In order that the Holders will be able to participate on a pro
rata basis with the holders of Amdocs Ordinary Shares in the
distribution of assets of Amdocs in connection with a
Liquidation Event, on the fifth Business Day prior to the
effective date (the "Liquidation Event Effective Date") of a
Liquidation Event all of the then outstanding Exchangeable
Shares shall be automatically exchanged for
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Amdocs Ordinary Shares. To effect such automatic exchange,
Holdco shall purchase each Exchangeable Share outstanding on
the fifth Business Day prior to the Liquidation Event
Effective Date and held by Holders, and each Holder shall sell
the Exchangeable Shares held by it at such time, for a
purchase price per share equal to (a) the Current Market Price
of an Amdocs Ordinary Share on the fifth Business Day prior to
the Liquidation Event Effective Date, which shall be satisfied
in full by Holdco issuing to the Holder one Amdocs Ordinary
Share, plus (b) to the extent not paid by the Company, an
additional amount equivalent to the full amount of all
dividends declared and unpaid on each such Exchangeable Share
and all dividends declared on Amdocs Ordinary Shares that have
not been declared on such Exchangeable Shares in accordance
with Section 3.1 of the Exchangeable Share Provisions
(provided that if the record date for any such declared and
unpaid dividends occurs on or after the day of closing of such
purchase and sale, the purchase price shall not include such
additional amounts equivalent to such declared and unpaid
dividends). In connection with such automatic exchange,
Holdco will provide to the Trustee an Officer's Certificate
setting forth the calculation of the purchase price for each
Exchangeable Share.
(d) On the fifth Business Day prior to the Liquidation Event
Effective Date, the closing of the transaction of purchase and
sale contemplated by the automatic exchange of Exchangeable
Shares for Amdocs Ordinary Shares shall be deemed to have
occurred, and each Holder of Exchangeable Shares shall be
deemed to have transferred to Holdco all of the Holder's
right, title and interest in and to such Exchangeable Shares
and the related interest in the Trust Estate and shall cease
to be a holder of such Exchangeable Shares and Holdco shall
deliver to the Holder the Amdocs Ordinary Shares issuable upon
the automatic exchange of Exchangeable Shares for Amdocs
Ordinary Shares and on the applicable payment date shall
deliver to the Trustee for delivery to the Holder a check for
the balance, if any, of the total purchase price for such
Exchangeable Shares without interest, but less any amounts
withheld pursuant to Section 5.13 hereof. Concurrently with
such Holder ceasing to be a holder of Exchangeable Shares, the
Holder shall be considered and deemed for all purposes to be
the holder of the Amdocs Ordinary Shares issued to it pursuant
to the automatic exchange of Exchangeable Shares for Amdocs
Ordinary Shares and the certificates held by the Holder
previously representing the Exchangeable Shares exchanged by
the Holder with Holdco pursuant to such automatic exchange
shall thereafter be deemed to represent the Amdocs Ordinary
Shares delivered to the Holder by Holdco pursuant to such
automatic exchange. Upon the request of a Holder and the
surrender by the Holder of Exchangeable Share certificates
deemed to represent shares of Amdocs Ordinary Shares, duly
endorsed in blank and accompanied by such instruments of
transfer as Amdocs and Holdco may reasonably require, Holdco
shall deliver or
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cause to be delivered to the Holder certificates representing
the Amdocs Ordinary Shares of which the Holder is the holder.
5.13 WITHHOLDING RIGHTS
Prior to the exchange or disposition of any Exchangeable
Shares in accordance with this Article, each Holder shall deliver to the
purchaser, at or before such time:
(a) a certificate confirming that such Holder is a resident of
Canada for the purposes of the ITA; or
(b) in the case of a Holder who is a non-resident of Canada for
the purposes of the ITA: (i) a certificate satisfactory to the
purchaser acting reasonably, issued pursuant to subsection
116(2) or 116(4) of the ITA, with respect to the Exchangeable
Shares, and having, in the case of a certificate under
subsection 116(2) as the "certificate limit", as defined in
subsection 116(2) of the ITA, an amount no less than the cost
to the purchaser of the Exchangeable Shares, as the case may
be; and (ii) if applicable, a certificate reasonably
satisfactory to the purchaser issued pursuant to Section 1098
of the Taxation Act (Quebec) or any other analogous
certificate required by any other provincial taxing authority.
In the case of a Holder who is a partnership, the Holder shall
also provide a certificate confirming the name and address of each member
thereof and the percentage of partnership interest held by each member (which
partners and percentages are clearly contemplated in the applicable
certificate).
In the event that a Holder fails to deliver the requisite
certificates described above at or before the exchange or disposition of such
shares, the purchaser of the Exchangeable Shares shall be entitled to deduct and
withhold from any consideration otherwise payable to any Holder such amounts as
the purchaser is required or permitted to deduct and withhold with respect to
such payment under the ITA or any provision of provincial or governmental tax
law, in each case, as amended or succeeded, provided that such withheld amount
shall not be remitted prior to two business days prior to the date such amount
is required by law to be remitted (the "Remittance Date") and where such
certificate is delivered prior to such Remittance Date, such withheld amount
shall be released. To the extent that amounts are so withheld, such withheld
amounts shall be treated for all purposes hereof as having been paid to the
Holder in respect of which such deduction and withholding was made, provided
that such withheld amounts are actually remitted to the appropriate taxing
authority. To the extent that the amount so required or permitted to be deducted
or withheld from any payment to a Holder exceeds the cash portion of the
consideration otherwise payable to the Holder, the purchaser, as agent of such
Holder, is hereby authorized to sell or otherwise dispose of such portion of the
consideration as is necessary to provide sufficient funds to the purchaser to
enable it to comply with such deduction or
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withholding requirement and the purchaser shall notify the Holder thereof and
remit to such Holder any unapplied balance of the net proceeds of such sale. If
the proceeds of such sale are insufficient to fund the required withholding, the
Holder shall forthwith pay to the purchaser or remit to the applicable taxing
authority the deficiency. The Holder shall bear all reasonable costs and expense
associated with such sale by purchaser pursuant to the two immediately preceding
sentences.
5.14 OTHER
At the option of Amdocs, the Exchange Right and the Automatic
Exchange Rights may be satisfied by Amdocs or Parentco.
ARTICLE 6
RESTRICTIONS ON ISSUE OF ADDITIONAL AMDOCS SPECIAL VOTING SHARES
6.1 ISSUE OF ADDITIONAL SHARES
During the term of this Agreement, Amdocs will not, without
the consent of the Holders, given in accordance with Section 10.2 of the
Exchangeable Share Provisions, issue any Amdocs Special Voting Shares in
addition to the Voting Share.
ARTICLE 7
CONCERNING THE TRUSTEE
7.1 POWERS AND DUTIES OF THE TRUSTEE
The rights, powers and authorities of the Trustee under this
Agreement, in its capacity as trustee of the Trust, shall include, without
limitation:
(a) receipt and deposit of the Voting Share from Amdocs as trustee
for and on behalf of the Holders in accordance with the
provisions of this Agreement;
(b) granting proxies and distributing materials to Holders as
provided in this Agreement;
(c) voting the Holder Votes in accordance with the provisions of
this Agreement;
(d) receiving the grant of the Exchange Right and the Automatic
Exchange Rights from Holdco as trustee for and on behalf of
the Holders in accordance with the provisions of this
Agreement;
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(e) exercising the Exchange Right and enforcing the benefit of the
Automatic Exchange Rights, in each case in accordance with the
provisions of this Agreement, and in connection therewith
receiving from Holders Exchangeable Shares and other requisite
documents and distributing to such Holders the Amdocs Ordinary
Shares and checks, if any, to which such Holders are entitled
upon the exercise of the Exchange Right or pursuant to the
Automatic Exchange Rights, as the case may be;
(f) holding title to the Trust Estate;
(g) investing any moneys forming, from time to time, a part of the
Trust Estate as provided in this Agreement;
(h) taking action on its own initiative or at the direction of a
Holder or Holders to enforce the obligations hereunder of each
other party hereto; and
(i) taking such other actions and doing such other things as are
specifically provided in this Agreement.
In the exercise of such rights, powers and authorities the
Trustee shall have (and is granted) such incidental and additional rights,
powers and authority not in conflict with any of the provisions of this
Agreement as the Trustee, acting in good faith and in the reasonable exercise of
its discretion, may deem necessary, appropriate or desirable to effect the
purpose of the Trust. Any exercise of such discretionary rights, powers and
authorities by the Trustee shall be final, conclusive and binding upon all
persons.
The Trustee in exercising its rights, powers, duties and
authorities hereunder shall act honestly and in good faith with a view to the
best interests of the Holders and shall exercise the care, diligence and skill
that a reasonably prudent trustee would exercise in comparable circumstances.
7.2 NO CONFLICT OF INTEREST
The Trustee represents to each other party hereto that at the
date of execution and delivery of this Agreement there exists no material
conflict of interest in the role of the Trustee as a fiduciary hereunder and the
role of the Trustee in any other capacity. The Trustee shall, within 90 days
after it becomes aware that such a material conflict of interest exists, either
eliminate such material conflict of interest or resign in the manner and with
the effect specified in Article 10 hereof. If, notwithstanding the foregoing
provisions of this Section 7.2, the Trustee has such a material conflict of
interest, the validity and enforceability of this Agreement shall not be
affected in any manner whatsoever by reason only of the existence of such
material conflict of
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interest. If the Trustee contravenes the foregoing provisions of this Section
7.2, any interested party may apply to the for an order that the Trustee be
replaced as trustee hereunder.
7.3 DEALINGS WITH TRANSFER AGENTS, REGISTRARS, ETC.
The Company and Amdocs irrevocably authorize the Trustee, from
time to time, to:
(a) consult, communicate and otherwise deal with the respective
registrars and transfer agents, and with any such subsequent
registrar or transfer agent, of the Exchangeable Shares and
the Amdocs Ordinary Shares; and
(b) requisition, from time to time, (i) from any such registrar or
transfer agent any information readily available from the
records maintained by it which the Trustee may reasonably
require for the discharge of its duties and responsibilities
under this Agreement and (ii) from the transfer agent of the
Amdocs Ordinary Shares, and any subsequent transfer agent of
such shares, the share certificates issuable upon the exercise
from time to time of the Exchange Right and pursuant to the
Automatic Exchange Rights in the manner specified in Article 5
hereof.
The Company and Amdocs shall irrevocably authorize their
respective registrars and transfer agents to comply with all such requests.
Amdocs covenants that it will supply its transfer agent with duly executed share
certificates for the purpose of completing the exercise from time to time of the
Exchange Right and the Automatic Exchange Rights, in each case pursuant to
Article 5 hereof.
7.4 BOOKS AND RECORDS
The Trustee shall keep available for inspection by Amdocs,
Parentco, Holdco and the Company, at the Trustee's principal office in Toronto,
Ontario correct and complete books and records of account relating to the
Trustee's actions under this Agreement, including without limitation, all
relevant data relating to mailings and instructions to and from Holders and all
transactions pursuant to the Voting Rights, the Exchange Right and the Automatic
Exchange Rights for the term of this Agreement. On or before June 30, 2000, and
on or before June 30 in every year thereafter, so long as the Voting Share is on
deposit with the Trustee, the Trustee shall transmit to Amdocs and the Company a
brief report, dated as of the preceding March 31, with respect to:
(a) the property and funds comprising the Trust Estate as of that
date;
(b) the number of exercises of the Exchange Right, if any, and the
aggregate number of Exchangeable Shares received by the
Trustee on behalf of Holders in
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consideration of the delivery by Amdocs, Parentco or Holdco of
Amdocs Ordinary Shares in connection with the Exchange Right,
during the calendar year ended on such date; and
(c) all other actions taken by the Trustee in the performance of
its duties under this Agreement which it had not previously
reported and which, in the Trustee's opinion, materially
affects the Trust Estate.
7.5 INCOME TAX RETURN AND REPORTS
The Trustee shall, to the extent necessary, prepare and file
on behalf of the Trust appropriate United States and Canadian income tax returns
and any other returns or reports as may be required by applicable law or
pursuant to the rules and regulations of any securities exchange or other
trading system through which the Exchangeable Shares are traded and, in
connection therewith, may obtain the advice and assistance of such experts as
the Trustee may consider necessary or advisable. If requested by the Trustee,
Amdocs shall retain such experts for purposes of providing such advice and
assistance.
7.6 INDEMNIFICATION PRIOR TO CERTAIN ACTIONS BY TRUSTEE
The Trustee shall exercise any or all of the rights, duties,
powers or authorities vested in it by this Agreement at the request, order or
direction of any Holder upon such Holder furnishing to the Trustee reasonable
funding, security and indemnity against the costs, expenses and liabilities
which may be incurred by the Trustee therein or thereby, provided that no Holder
shall be obligated to furnish to the Trustee any such funding, security or
indemnity in connection with the exercise by the Trustee of any of its rights,
duties, powers and authorities with respect to the Voting Share pursuant to
Article 4 hereof, subject to Section 7.15 hereof, and with respect to the
Exchange Right pursuant to Article 5 hereof, subject to Section 7.15 hereof, and
with respect to the Automatic Exchange Rights pursuant to Article 5 hereof.
None of the provisions contained in this Agreement shall
require the Trustee to expend or risk its own funds or otherwise incur financial
liability in the exercise of any of its rights, powers, duties or authorities
unless funded, given funds, security and indemnified as aforesaid.
7.7 ACTIONS BY HOLDERS
No Holder shall have the right to institute any action, suit
or proceeding or to exercise any other remedy authorized by this Agreement for
the purpose of enforcing any of its rights or for the execution of any trust or
power hereunder unless the Holder has requested the Trustee to take or institute
such action, suit or proceeding and furnished the Trustee with the funding,
security and indemnity referred to in Section 7.6 hereof and the Trustee shall
have failed
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to act within a reasonable time thereafter. In such case, but not otherwise, the
Holder shall be entitled to take proceedings in any court of competent
jurisdiction such as the Trustee might have taken; it being understood and
intended that no one or more Holders shall have any right in any manner
whatsoever to affect, disturb or prejudice the rights hereby created by any such
action, or to enforce any right hereunder or under the Voting Rights, the
Exchange Right or the Automatic Exchange Rights, except subject to the
conditions and in the manner herein provided, and that all powers and trusts
hereunder shall be exercised and all proceedings at law shall be instituted, had
and maintained by the Trustee, except only as herein provided, and in any event
for the equal benefit of all Holders.
7.8 RELIANCE UPON DECLARATIONS
The Trustee shall not be considered to be in contravention of
any of its rights, powers, duties and authorities hereunder if, when required,
it acts and relies in good faith upon statutory declarations, certificates,
opinions or reports furnished pursuant to the provisions hereof or required by
the Trustee to be furnished to it in the exercise of its rights, powers, duties
and authorities hereunder if such statutory declarations, certificates, opinions
or reports comply with the provisions of Section 7.9 hereof, if applicable, and
with any other applicable provisions of this Agreement.
7.9 EVIDENCE AND AUTHORITY TO TRUSTEE
The Company, Holdco, Parentco and/or Amdocs shall furnish to
the Trustee evidence of compliance with the conditions provided for in this
Agreement relating to any action or step required or permitted to be taken by
the Company, Holdco, Parentco and/or Amdocs or the Trustee under this Agreement
or as a result of any obligation imposed under this Agreement, including,
without limitation, in respect of the Voting Rights or the Exchange Right or the
Automatic Exchange Rights and the taking of any other action to be taken by the
Trustee at the request of or on the application of the Company, Holdco, Parentco
and/or Amdocs forthwith if and when:
(a) such evidence is required by any other section of this
Agreement to be furnished to the Trustee in accordance with
the terms of this Section 7.9; or
(b) the Trustee, in the exercise of its rights, powers, duties and
authorities under this Agreement, gives the Company, Holdco,
Parentco and/or Amdocs written notice requiring it to furnish
such evidence in relation to any particular action or
obligation specified in such notice.
Such evidence shall consist of an Officer's Certificate of the
Company, Holdco, Parentco and/or Amdocs or a statutory declaration or a
certificate made by persons entitled to sign an Officer's Certificate stating
that any such condition has been complied with in accordance with the terms of
this Agreement.
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Whenever such evidence relates to a matter other than the
Voting Rights or the Exchange Right or the Automatic Exchange Rights or, the
taking of any other action to be taken by the Trustee at the request or on the
application of the Company, Holdco, Parentco and/or Amdocs, and except as
otherwise specifically provided herein, such evidence may consist of a report or
opinion of any solicitor, auditor, accountant, appraiser, valuer, engineer or
other expert or any other person whose qualifications give authority to a
statement made by him, provided that if such report or opinion is furnished by a
director, officer or employee of the Company, Holdco, Parentco and/or Amdocs it
shall be in the form of an Officer's Certificate or a statutory declaration.
Each statutory declaration, Officer's Certificate, opinion or
report furnished to the Trustee as evidence of compliance with a condition
provided for in this Agreement shall include a statement by the person giving
the evidence:
(a) declaring that he has read and understands the provisions of
this trust agreement relating to the condition in question:
(b) describing the nature and scope of the examination or
investigation upon which he based the statutory declaration,
certificate, statement or opinion; and
(c) declaring that he has made such examination or investigation
as he believes is necessary to enable him to make the
statements or give the opinions contained or expressed
therein.
7.10 EXPERTS, ADVISERS AND AGENTS
The Trustee may:
(a) in relation to these presents act and rely on the opinion or
advice of or information obtained from or prepared by any
solicitor, auditor, accountant, appraiser, valuer, engineer or
other expert, whether retained by the Trustee or by the
Company and/or Amdocs or otherwise, and may employ such
assistants as may be necessary to the proper discharge of its
powers and duties and determination of its rights hereunder
and may pay proper and reasonable compensation for all such
legal and other advice or assistance as aforesaid; and
(b) employ such agents and other assistants as it may reasonably
require for the proper discharge of its powers and duties
hereunder, and may pay reasonable remuneration for all
services performed for it (and shall be entitled to receive
reasonable remuneration for all services performed by it) in
the discharge of the trusts hereof and compensation for all
disbursements, costs and expenses made or
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incurred by it in the discharge of its duties hereunder and in
the management of the Trust.
7.11 INVESTMENT OF MONEYS HELD BY TRUSTEE
Unless otherwise provided in this Agreement, any moneys held
by or on behalf of the Trustee which under the terms of this Agreement may or
ought to be invested or which may be on deposit with the Trustee or which may be
in the hands of the Trustee may be invested and reinvested in the name or under
the control of the Trustee in securities in which, under the laws of the
Province of Ontario, trustees are authorized to invest trust moneys, provided
that such securities are stated to mature within two years after their purchase
by the Trustee, and the Trustee shall so invest such moneys on the written
direction of the Company. Pending the investment of any moneys as hereinbefore
provided, such moneys may be deposited in the name of the Trustee in any
chartered bank in Canada or, with the consent of the Company, in the deposit
department of the Trustee or any other loan or trust company authorized to
accept deposits under the laws of Canada or any province thereof at the rate of
interest then current on similar deposits.
7.12 TRUSTEE NOT REQUIRED TO GIVE SECURITY
The Trustee shall not be required to give any bond or security
in respect of the execution of the trusts, rights, duties, powers and
authorities of this Agreement or otherwise in respect of the premises.
7.13 TRUSTEE NOT BOUND TO ACT ON COMPANY'S REQUEST
Except as in this Agreement otherwise specifically provided,
the Trustee shall not be bound to act in accordance with any direction or
request of the Company, Holdco, Parentco and/or Amdocs or of the directors
thereof until a duly authenticated copy of the instrument or resolution
containing such direction or request shall have been delivered to the Trustee,
and the Trustee shall be empowered to act and rely upon any such copy purporting
to be authenticated and believed by the Trustee to be genuine.
7.14 AUTHORITY TO CARRY ON BUSINESS
The Trustee represents to the Company, Holdco, Parentco and
Amdocs that at the date of execution and delivery by it of this Agreement it is
authorized to carry on the business of a trust company in all the provinces of
Canada but if, notwithstanding the provisions of this Section 7.14, it ceases to
be so authorized to carry on business, the validity and enforceability of this
Agreement and the Voting Rights, the Exchange Right and the Automatic Exchange
Rights shall not be affected in any manner whatsoever by reason only of such
event but the Trustee shall, within 90 days after ceasing to be authorized to
carry on the business of a trust company in
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the Province of Ontario, either become so authorized or resign in the manner and
with the effect specified in Article 10 hereof.
7.15 CONFLICTING CLAIMS
If conflicting claims or demands are made or asserted with
respect to any interest of any Holder in any Exchangeable Shares, including any
disagreement between the heirs, representatives, successors or assigns
succeeding to all or any part of the interest of any Holder in any Exchangeable
Shares resulting in conflicting claims or demands being made in connection with
such interest, then the Trustee shall be entitled, at its sole discretion, to
refuse to recognize or to comply with any such claim or demand. In so refusing,
the Trustee may elect not to exercise any Voting Rights, Exchange Right or
Automatic Exchange Rights subject to such conflicting claims or demands and, in
so doing, the Trustee shall not be or become liable to any person on account of
such election or its failure or refusal to comply with any such conflicting
claims or demands. The Trustee shall be entitled to continue to refrain from
acting and to refuse to act until:
(a) the rights of all adverse claimants with respect to the Voting
Rights, Exchange Right or Automatic Exchange Rights subject to
such conflicting claims or demands have been adjudicated by a
final judgment of a court of competent jurisdiction; or
(b) all differences with respect to the Voting Rights, Exchange
Right or Automatic Exchange Rights subject to such conflicting
claims or demands have been conclusively settled by a valid
written agreement binding on all such adverse claimants, and
the Trustee shall have been furnished with an executed copy of
such agreement.
If the Trustee elects to recognize any claim or comply with
any demand made by any such adverse claimant, it may in its discretion require
such claimant to furnish such surety bond or other security satisfactory to the
Trustee as it shall deem appropriate fully to indemnify it as between all
conflicting claims or demands.
7.16 ACCEPTANCE OF TRUST
The Trustee hereby accepts the Trust created and provided for
by and in this Agreement and agrees to perform the same upon the terms and
conditions herein set forth and to hold all rights, privileges and benefits
conferred hereby and by law in trust for the various persons who shall from time
to time be Holders, subject to all the terms and conditions herein set forth.
ARTICLE 8
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COMPENSATION
8.1 FEES AND EXPENSES OF THE TRUSTEE
The Company shall pay to the Trustee reasonable compensation
for all of the services rendered by it under this Agreement and will reimburse
the Trustee for all reasonable expenses (including but not limited to taxes,
compensation paid to experts, agents and advisors and travel expenses) and
disbursements, including the cost and expense of any suit or litigation of any
character and any proceedings before any governmental agency reasonably incurred
by the Trustee in connection with its rights and duties under this Agreement;
provided that the Company shall have no obligation to reimburse the Trustee for
any expenses or disbursements paid, incurred or suffered by the Trustee in any
suit or litigation in which the Trustee is determined to have acted in bad faith
or with negligence, recklessness or willful misconduct.
ARTICLE 9
INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 INDEMNIFICATION OF THE TRUSTEE
The Company shall indemnify and hold harmless the Trustee and
each of its directors, officers, employees and agents appointed and acting in
accordance with this Agreement (collectively, the "Indemnified Parties") against
all claims, losses, damages, costs, penalties, fines and reasonable expenses
(including reasonable expenses of the Trustee's legal counsel) which, without
fraud, negligence, recklessness, willful misconduct or bad faith on the part of
such Indemnified Party, may be paid, incurred or suffered by the Indemnified
Party by reason of or as a result of the Trustee's acceptance or administration
of the Trust, its compliance with its duties set forth in this Agreement, or any
written or oral instructions delivered to the Trustee by Amdocs or the Company
pursuant hereto. In no case shall the Company be liable under this indemnity for
any claim against any of the Indemnified Parties unless the Company shall be
notified by the Trustee of the written assertion of a claim or of any action
commenced against the Indemnified Parties, promptly after any of the Indemnified
Parties shall have received any such written assertion of a claim or shall have
been served with a summons or other first legal process giving information as to
the nature and basis of the claim. Subject to (ii), below, the Company shall be
entitled to participate at its own expense in the defense and, if the Company so
elects at any time after receipt of such notice, it may assume the defense of
any suit brought to enforce any such claim. The Trustee shall have the right to
employ separate counsel in any such suit and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of the Trustee
unless: (i) the employment of such counsel has been authorized by the Company,
such authorization not to be unreasonably withheld; or (ii) the named parties to
any such suit include both the Trustee and Amdocs or the Company and the Trustee
shall have been advised by counsel acceptable to the Company that there may be
one or more legal defenses available to the Trustee that are different from or
in addition to those
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available to Amdocs or the Company and that an actual or potential conflict of
interest exists (in which case the Company shall not have the right to assume
the defense of such suit on behalf of the Trustee but shall be liable to pay the
reasonable fees and expenses of counsel for the Trustee).
9.2 LIMITATION OF LIABILITY
The Trustee shall not be held liable for any loss which may
occur by reason of depreciation of the value of any part of the Trust Estate or
any loss incurred on any investment of funds pursuant to this Agreement, except
to the extent that such loss is attributable to the fraud, negligence, willful
misconduct or bad faith on the part of the Trustee.
ARTICLE 10
CHANGE OF TRUSTEE
10.1 RESIGNATION
The Trustee, or any trustee hereafter appointed, may at any
time resign by giving written notice of such resignation to Amdocs and the
Company specifying the date on which it desires to resign, provided that such
notice shall never be given less than 60 days before such desired resignation
date unless Amdocs and the Company otherwise agree and provided further that
such resignation shall not take effect until the date of the appointment of a
successor trustee and the acceptance of such appointment by the successor
trustee. Upon receiving such notice of resignation, Amdocs and the Company shall
promptly appoint a successor trustee by written instrument in duplicate, one
copy of which shall be delivered to the resigning trustee and one copy to the
successor trustee. Failing acceptance by a successor trustee, a successor
trustee may be appointed by an order of the Court upon application of one or
more of the parties hereto.
10.2 REMOVAL
The Trustee, or any trustee hereafter appointed, may be
removed with or without cause, at any time on 30 days' prior notice by written
instrument executed by Amdocs and the Company, in duplicate, one copy of which
shall be delivered to the trustee so removed and one copy to the successor
trustee.
10.3 SUCCESSOR TRUSTEE
Any successor trustee appointed as provided under this
Agreement shall execute, acknowledge and deliver to Amdocs, Parentco, Holdco and
the Company and to its predecessor trustee an instrument accepting such
appointment. Thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, duties and
obligations of its
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<PAGE> 30
predecessor under this Agreement, with like effect as if originally named as
trustee in this Agreement. However, on the written request of Amdocs, Parentco,
Holdco and the Company or of the successor trustee, the trustee ceasing to act
shall, upon payment of any amounts then due it pursuant to the provisions of
this Agreement, execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the trustee so ceasing to act. Upon the
request of any such successor trustee, Amdocs, Parentco, Holdco, the Company and
such predecessor trustee shall execute any and all instruments in writing for
more fully and certainly vesting in and confirming to such successor trustee all
such rights and powers.
10.4 NOTICE OF SUCCESSOR TRUSTEE
Upon acceptance of appointment by a successor trustee as
provided herein, Amdocs and the Company shall cause to be mailed notice of the
succession of such trustee hereunder to each Holder specified in a List. If
Amdocs or the Company shall fail to cause such notice to be mailed within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.
ARTICLE 11
AMDOCS SUCCESSORS
11.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC.
Amdocs, directly or indirectly, shall not consummate any
transaction (whether by way of reconstruction, reorganization, consolidation,
merger, transfer, sale, lease or otherwise) whereby all or substantially all of
its undertaking, property and assets would become the property of any other
person or, in the case of a merger, of the continuing corporation resulting
therefrom unless, but may do so if:
(a) such other person or continuing corporation (herein called the
"Amdocs Successor"), by operation of law, becomes, without
more, bound by the terms and provisions of this Agreement or,
if not so bound, executes, prior to or contemporaneously with
the consummation of such transaction an agreement supplemental
hereto and such other instruments (if any) as are reasonably
satisfactory to the Trustee and in the opinion of legal
counsel to the Trustee are reasonably necessary or advisable
to evidence the assumption by the Amdocs Successor of Amdocs'
liability for all moneys payable and property deliverable by
Amdocs hereunder and the covenant of such Amdocs Successor to
pay and deliver or cause to be delivered the same and its
agreement to observe and perform all the covenants and
obligations of Amdocs under this Agreement; and
(b) such transaction shall, to the reasonable satisfaction of the
Trustee and in the opinion of legal counsel to the Trustee, be
upon such terms so as to substantially
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preserve and not to impair in any material respect any of the
rights, interests, duties, powers and authorities of the
Trustee or of the Holders hereunder.
11.2 VESTING OF POWERS IN SUCCESSOR
Whenever the conditions of Section 11.1 hereof have been duly
observed and performed, the Amdocs Successor and the parties hereto, if required
by Section 11.1 hereof, shall execute and deliver the supplemental agreement
provided for in Section 12.5 hereof and thereupon Amdocs Successor shall possess
and from time to time may exercise each and every right and power of Amdocs
under this Agreement in the name of Amdocs or otherwise and any act or
proceeding by any provision of this Agreement required to be done or performed
by the Board of Directors of Amdocs or any officers of Amdocs may be done and
performed with like force and effect by the directors or officers of such Amdocs
Successor.
11.3 WHOLLY-OWNED SUBSIDIARIES
Nothing herein shall be construed as preventing the
amalgamation, merger or other combination of any wholly-owned direct or indirect
subsidiary of Amdocs with or into Amdocs or the winding-up, liquidation or
dissolution of any wholly-owned subsidiary of Amdocs provided that all of the
assets of such subsidiary are transferred to Amdocs or another wholly-owned
subsidiary of Amdocs, and any such transactions are expressly permitted by this
Article 11.
ARTICLE 12
AMENDMENTS AND SUPPLEMENTAL TRUST AGREEMENTS
12.1 AMENDMENTS, MODIFICATIONS, ETC.
This Agreement may not be amended or modified except by an
agreement in writing executed by the Company, Amdocs, Parentco, Holdco and the
Trustee and approved by the Holders in accordance with Section 10.2 of the
Exchangeable Share Provisions.
12.2 ADMINISTRATIVE AMENDMENTS
Notwithstanding the provisions of Section 12.1 hereof, the
parties to this Agreement may in writing, at any time and from time to time,
without the approval of the Holders, amend or modify this Agreement for the
purposes of:
(a) adding to the covenants of any or all parties hereto for the
protection of the Holders hereunder provided that the Board of
Directors of each of the Company and Amdocs shall be of the
good faith opinion that such additions will not be prejudicial
to the rights or interests of the Holders;
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(b) making such amendments or modifications not inconsistent with
this Agreement as may be necessary or desirable with respect
to matters or questions which, in the good faith opinion of
the Board of Directors of each of Amdocs and Company and in
the good faith opinion of the Trustee and its counsel, having
in mind the best interests of the Holders as a whole, it may
be expedient to make, provided that such boards of directors
and the Trustee and its counsel shall be of the good faith
opinion that such amendments and modifications will not be
prejudicial to the interests of the Holders as a whole; or
(c) making such changes or corrections which, on the advice of
counsel to the Company, Amdocs and the Trustee, are required
for the purpose of curing or correcting any ambiguity or
defect or inconsistent provision or clerical omission or
mistake or manifest error, provided that the Trustee and its
counsel and the Board of Directors of each of the Company and
Amdocs shall be of the good faith opinion that such changes or
corrections will not be prejudicial to the interests of the
Holders as a whole.
12.3 MEETING TO CONSIDER AMENDMENTS
The Company, at the request of Amdocs, shall call a meeting or
meetings of the Holders for the purpose of considering any proposed amendment or
modification requiring approval pursuant hereto. Holders may also approve any
proposed amendment or modification by written consent of Holders holding not
less than the minimum number of Exchangeable Shares that would be necessary to
authorize or take such action at a meeting of Holders called for such purpose.
Any such meeting or meetings shall be called and held, or written consent given
shall be given in accordance with the by-laws of the Company, the Exchangeable
Share Provisions and all applicable laws.
12.4 CHANGES IN CAPITAL OF AMDOCS AND THE COMPANY
At all times after the occurrence of any event effected
pursuant to Section 2.7 or Section 2.8 of the Support Agreement or otherwise, as
a result of which either Amdocs Ordinary Shares or the Exchangeable Shares or
both are in any way changed, this Agreement shall forthwith be amended and
modified as necessary in order that it shall apply with full force and effect,
mutatis mutandis, to all new securities into which the Amdocs Ordinary Shares or
the Exchangeable Shares or both are so changed and the parties hereto shall
execute and deliver a supplemental agreement giving effect to and evidencing
such necessary amendments and modifications.
12.5 EXECUTION OF SUPPLEMENTAL AGREEMENTS
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No amendment to or modification or waiver of any of the
provisions of this Agreement otherwise permitted hereunder shall be effective
unless made in writing and signed by all of the parties hereto. From time to
time the Company, Amdocs, Parentco, Holdco and the Trustee may, subject to the
provisions of these presents, and they shall, when so directed by these
presents, execute and deliver by their proper officers, agreements or other
instruments supplemental hereto, which thereafter shall form part hereof, for
any one or more of the following purposes:
(a) evidencing the succession of Amdocs Successors to Amdocs and
the covenants of and obligations assumed by each such Amdocs
Successor in accordance with the provisions of Article 11 and
the successor of any successor trustee in accordance with the
provisions of Article 10;
(b) making any additions to, deletions from or alterations of the
provisions of this Agreement or the Voting Rights, the
Exchange Right or the Automatic Exchange Rights which, in the
opinion of the Trustee and its counsel, will not be
prejudicial to the interests of the Holders as a whole or are
in the opinion of counsel to the Trustee necessary or
advisable in order to incorporate, reflect or comply with any
legislation the provisions of which apply to Amdocs, Parentco,
Holdco, the Company, the Trustee or this Agreement; and
(c) for any other purposes not inconsistent with the provisions of
this trust agreement, including without limitation to make or
evidence any amendment or modification to this agreement as
contemplated hereby, provided that, in the opinion of the
Trustee and its counsel, the rights of the Trustee and the
Holders as a whole will not be prejudiced thereby.
ARTICLE 13
TERMINATION
13.1 TERM
The Trust created by this Agreement shall continue until the
earliest to occur of the following events:
(a) no outstanding Exchangeable Shares are held by a Holder (other
than Amdocs and its Affiliates);
(b) each of the Company and Amdocs elects in writing to terminate
the Trust and such termination is approved by the Holders of
the Exchangeable Shares in accordance with Section 10.2 of the
Exchangeable Share Provisions; and
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(c) 21 years from the date of this Agreement.
13.2 SURVIVAL OF AGREEMENT
This Agreement shall survive any termination of the Trust and
shall continue until there are no Exchangeable Shares outstanding held by a
Holder; provided, however, that the provisions of Articles 8 and 9 hereof shall
survive any such termination of this Agreement.
ARTICLE 14
GENERAL
14.1 SEVERABILITY
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule or 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 the
transactions contemplated hereby 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 an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
14.2 INUREMENT
This Agreement shall be binding upon and inure to the benefit
of the parties hereto, the holders of the Exchangeable Shares and their
respective successors and permitted assigns, as well as to their respective
heirs, executors, trustees, administrators and other personal representatives.
14.3 NOTICES TO PARTIES
All notices and other communications between the parties
hereunder shall be in writing and shall be deemed to have been given if
delivered personally or by overnight courier service, transmitted by facsimile
or mailed by registered or certified mail, postage prepaid to the parties at the
following addresses (or at such other address for such party as shall be
specified in like notice):
(a) if to Amdocs, Parentco or Holdco to:
c/o Amdocs Management Limited
Grand Buildings
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1-3 Strand
London WCZN5EJ
Facsimile No.: 44-171-930-2321
with a copy to:
Reboul, MacMurray, Hewitt, Maynard
& Kristol
45 Rockefeller Plaza
New York, New York 10111
Attention: Robert A. Schwed
Facsimile No.: (212) 841-5725
(b) if to the Company to:
Solect Technology Group Inc.
55 University Avenue
Toronto, Ontario M5J 2H7
Attention: President
Facsimile No.: (416) 216-6351
with a copy to:
Fasken Martineau DuMoulin LLP
Toronto Dominion Centre
Toronto Dominion Bank Tower
Suite 3600
Toronto Ontario
M5K 1N6
Attention: Constance L. Sugiyama
Facsimile: (416) 364-7813
and to:
Skadden, Arps, Slate, Meagher & Flom LLP
Suite 1820 North Tower
Royal Bank Plaza
Toronto, Ontario
M5J 254
Attention: Christopher W. Morgan
Facsimile: (416) 322-0088
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<PAGE> 36
and to:
Reboul, MacMurray, Hewitt, Maynard
& Kristol
45 Rockefeller Plaza
New York, New York 10111
Attention: Robert A. Schwed
Facsimile No.: (212) 841-5725
(c) if to the Trustee to:
The Trust Company of Bank of Montreal
Suite 5104
1 First Canadian Place
Toronto, Ontrio
M5X 1A1
Attention: Senior Trust Officer
Fax: (416) 867-6264
Any notice or other communication given in accordance herewith
shall be deemed to have been given and received upon receipt thereof unless such
day is not a Business Day in which case it shall be deemed to have been given
and received upon the immediately following Business Day.
14.4 NOTICE OF HOLDERS
Any and all notices to be given and any documents to be sent
to any Holders may be given or sent to the address of such holder shown on the
register of holders of Exchangeable Shares in any manner permitted by the
by-laws of the Company from time to time in force in respect of notices to
shareholders and shall be deemed to be received (if given or sent in such
manner) at the time specified in such by-laws, the provisions of which by-laws
shall apply mutatis mutandis to notices or documents as aforesaid sent to such
Holders.
14.5 RISK OF PAYMENTS BY POST
Whenever payments are to be made or documents are to be sent
to any Holder by the Trustee or by the Company, or by such Holder to the Trustee
or to Amdocs or the Company, the making of such payment or sending of such
document sent through the post shall be at the
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risk of the Company, in the case of payments made or documents sent by the
Trustee or the Company, and the Holder, in the case of payments made or
documents sent by the Holder.
14.6 COUNTERPARTS
This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute
one and the same instrument.
14.7 JURISDICTION
This Agreement shall be construed and enforced in accordance
with the laws of the Province of Ontario and the laws of Canada applicable
therein.
14.8 ATTORNMENT
Each of Amdocs, Parentco, Holdco and the Company agrees that
any action or proceeding arising out of or relating to this Agreement may be
instituted in the courts of Ontario, waives any objection which it may have now
or hereafter to the venue of any such action or proceeding, irrevocably submits
to the jurisdiction of the said courts in any such action or proceeding, agrees
to be bound by any judgment of the said courts and agrees not to seek, and
hereby waives, any review of the merits of any such judgment by the courts of
any other jurisdiction and each such party (other than the Company) hereby
appoints the Company at its registered office in the Province of Ontario as such
party's attorney for service of process.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
AMDOCS LIMITED
By: /s/ THOMAS G. O'BRIEN
-------------------------
Name: Thomas G. O'Brien
Title:
AMDOCS (DENMARK) APS.
By: /s/ THOMAS G. O'BRIEN
-------------------------
Name: Thomas G. O'Brien
Title:
AMDOCS HOLDINGS ULC
By: /s/ THOMAS G. O'BRIEN
-------------------------
Name: Thomas G. O'Brien
Title:
<PAGE> 39
SOLECT TECHNOLOGY GROUP INC.
By: /s/ PAUL ATKINSON
-------------------------
Name: Paul Atkinson
Title:
THE TRUST COMPANY OF BANK OF
MONTREAL
By: /s/ LIONEL PETERS
-------------------------
Name: Lionel Peters
Title: Trust Officer
