SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-
1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
Excel Communications, Inc.
-------------------------------------------------------
(Name of Issuer)
Common Shares
-------------------------------------------------------
(Title of Class of Securities)
30065K104
-------------------------------------------------------
(CUSIP Number)
Marc J. Ryan, Vice-President, Associate General Counsel and Corporate Secretary
BCE Inc., 1000 rue de la Gauchetiere Ouest, bureau 3700,
Montreal (Quebec),H3B 4Y7, Canada
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 14, 1998
-------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1 (b)(3) or (4), check the following
box [ ].
Note. Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1 (a) for other parties to whom
copies are to be sent.
(Continued on following pages)
John Sypnowich
Legal Counsel
Telephone : (514) 397-7059
Fax : (514) 397-7263
CUSIP NO. 30065K104 13D Page 2 of 6 Pages
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
BCE INC.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
NOT APPLICABLE
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) [ ]
NOT APPLICABLE
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CANADA
NUMBER OF 7 SOLE VOTING POWER 11,000,0005
SHARES
BENEFICIALLY 8 SHARED VOTING POWER 0
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER 11,000,000
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER 0
WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,000,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES * [ ]
NOT APPLICABLE
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
Approximately 7.8% (fully diluted)
14 TYPE OF REPORTING PERSON
CO
SEE INSTRUCTIONS BEFORE FILLING OUT!
Item 1. Security and Issuer
The class of equity securities to which this statement relates is
the common stock, par value $.001 per share of Excel
Communications, Inc. ("Excel"). The principal place of business
of Excel is 8750 North Central Expressway, Suite 2000, Dallas,
Texas 75231.
On June 14, 1998, BCE Inc. ("BCE"), entered into agreements to
purchase 11,000,000 shares of Excel common stock (the "Excel
Shares") pursuant to eight Stock Purchase Agreements dated as of
June 14, 1998 between BCE and certain selling shareholders that
are not officers or directors of Excel (the "Stock Purchase
Agreements"). A form of the Stock Purchase Agreements is filed
herewith as Exhibit B to this Schedule 13D and is hereby
incorporated herein by reference.
Item 2. Identity and Background
The name of the person filing this statement is BCE, a corporation
incorporated under the Canada Business Corporations Act and
Canada's largest telecommunications company. The address of the
principal office of BCE is 1000, rue de La Gauchetiere Ouest,
Bureau 3700, Montreal, Quebec, H3B 4Y7.
The name, business address, present principal occupation or
employment and citizenship of each director and executive officer
of BCE as at June 23, 1998 is set forth on Exhibit A attached
hereto.
During the last five years, neither BCE, nor any other person
controlling BCE, nor any of the persons listed on Exhibit A
attached hereto, has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or has
been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The aggregate purchase price for the Excel Shares pursuant to the
Stock Purchase Agreements will be US$ 264,000,000. The source of
funds used to purchase the shares will be BCE's working capital.
Item 4. Purpose of Transaction
BCE is purchasing the shares for the purpose of investment and to
maintain its percentage ownership of common shares of Teleglobe
Inc. ("Teleglobe"), as part of its strategic relationship with
Teleglobe. BCE is currently the record and beneficial owner of
approximately 24% of the common shares outstanding of Teleglobe.
On June 14, 1998, Teleglobe, Excel and a wholly owned subsidiary
of Teleglobe entered into an agreement and plan of merger which
provides for the combination of Teleglobe and Excel and the
exchange of Excel common stock for common shares of Teleglobe
(the "Merger"). Including the common shares of Teleglobe to be
received in exchange for the Excel Shares pursuant to Merger, BCE
will own approximately 16% (fully diluted) shares of the combined
company after the consummation of the Merger. In addition, BCE
has a Subscription Agreement with Teleglobe which gives BCE
preemptive rights to maintain its existing percentage ownership
of Teleglobe common shares.
Except as set forth above, neither BCE, nor any person
controlling BCE, nor any of the persons named on Exhibit A, has
any plan or proposals which relate to or would result in any of
the transactions described in subparagraphs (a) through (j) of
Item 4 of Exhibit 13D.
Item 5. Interest in Securities of Excel
(a) BCE will acquire and, for purpose of Rule 13d-3 of the Exchange
Act promulgated under the Exchange Act, will beneficially own
11,000,000 shares, representing approximately 7.8% (fully
diluted) of the outstanding common shares of Excel. The Excel
Shares will be purchased for US$ 24 per share in private
transactions pursuant to the Stock Purchase Agreements. Subject
to the satisfaction or waiver of all conditions to closing set
forth in Stock Purchase Agreements, the closing for a portion of
BCE's purchase of Excel Shares is expected to take place on or
about June 29, 1998 and the closing for the remaining portion is
expected to take place on or about July 10, 1998.
Except as set forth in this Item 5, neither BCE nor any other
person controlling BCE or any persons named in Exhibit A hereto
beneficially owns any Common Shares of Excel.
(b) BCE will have the sole voting power and sole power to
dispose or direct the disposition of 11,000,000 shares of
Excel common stock.
(c) Except for the transaction described in Item 4 hereof, no
transactions in securities of Excel have been effected during the
last 60 days by BCE, or any other person controlling BCE, or any
of the persons named in Exhibit A.
(d) Inapplicable.
(e) Inapplicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of Excel
To the best knowledge of BCE, there are no contracts,
arrangements, understandings or relationships (legal or
otherwise) between the persons enumerated in Item 2, and any
other person, with respect to any securities of Excel, including,
but not limited to, transfer or voting of any of the securities,
finder's fees, joint ventures, loan or option arrangements, puts
or calls, guarantees of profits, division of profits or loss, or
the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits
Exhibit A - Directors and Officers of BCE
Exhibit B - Form of Stock Purchase Agreement dated as of June 14,
1998 between BCE and the selling shareholder named
therein.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
June 26, 1998
- -----------------------
(Date)
BCE INC.
By: /s/ Pierre N. Lessard
----------------------------
(Name) Pierre N. Lessard
(Title) Vice-President and Treasurer
EXHIBIT A
---------
BCE Inc.
Directors as of June 23, 1998
Name Business Address Dates
Barford, Ralph MacKenzie President
Valleydane Corporation Limited
20 Eglinton Avenue W., Suite 1903
P.O. Box 2026
Toronto, Ontario
Canada
M4R 1K8
Currie, Richard James President
George Weston Limited
22 St. Clair Avenue East
Suite 2001
Toronto, Ontario
Canada
M4T 2S7
Guillevin Wood, Jeannine Chairman of the Board
Banque Laurentienne du Canada
1980, avenue McGill College
20e etage
Montreal, Quebec
Canada
H3A 3K3
Levitt, Brian Michael President and Chief Executive Officer
Imasco Limited
600, boul. de Maisonoeuve ouest
19th Floor
Montreal, Quebec
Canada
H3A 3K7
Maier, Gerald James Chairman of the Board
TransCanada PipeLines Limited
3400, 237 Fourth Avenue S.W.
Calgary, Alberta
Canada
T2P 5A4
McArthur, John Hector Dean Emeritus
Harvard Univ. Graduate School of Bus.
Admin.
Soldiers Field
Boston, Massachusetts
U.S.A.
02163
Monty, Jean Claude President and Chief Executive Officer
BCE Inc.
1000, rue de La Gauchetiere Ouest
Bureau 3800
Montreal, Quebec
Canada
H3B 4Y7
Newali, James Edward Chairman
Newali & Associates
2015 Barkem Hall
855 - 2nd Street S.W.
Calgary, Alberta
Canada
T2P 4J7
Saint-Pierre, Guy Chairman of the Board
Groupe SNC-Lavalin Inc.
455, boul. Rene-Levesque Ouest
21e etage
Montreal, Quebec
Canada
H2Z 1Z3
Wilson, Lynton Ronald Chairman of the Board
BCE Inc.
1000, rue de La Gauchetiere Ouest
Bureau 3700
Montreal, Quebec
Canada
H3B 4Y7
Young, Victor Leyland Chairman and Chief Executive Officer
Fishery Products International Limited
70 O'Leary Avenue
P.O. Box 550
St. John's, Newfoundland
Canada
A1C 5L1
[A] indicates an Associate Director
BCE Inc.
Officers as of June 23, 1998
<TABLE>
<CAPTION>
Name Title Business Address
<S> <C> <C>
Anderson, William David Chief Financial Officer 1800, rue de La Gauchetiere Ouest
Bureau 3700
Montreal, Quebec
Canada
H3B 4Y7
Bourke, Thomas John Group Vice-President, 1600, boul. Rene-Levesque Ouest
Directories Bureau 1850
Montreal, Quebec
Canada
H3H 1P9
Conway, Michael Vice-President and 1800, rue de La Gauchetiere Ouest
Comptroller Bureau 3700
Montreal, Quebec
Canada
H3B 4Y7
Fridman, Josef Josel Chief Legal Officer 1800, rue de La Gauchetiere Ouest
Bureau 3700
Montreal, Quebec
Canada
H3B 4Y7
Lessard, Pierre Normand Vice-President and 1800, rue de La Gauchetiere Ouest
Treasurer Bureau 3700
Montreal, Quebec
Canada
H3B 4Y7
Monty, Jean Claude President and Chief 1000, rue de La Gauchetiere Ouest
Executive Officer Bureau 3800
Montreal, Quebec
Canada
H3B 4Y7
Nicholson, Peter John Exec. Vice-President, 1000, rue de La Gauchetiere Ouest
MacKenzie Corporate Strategy Bureau 3700
Montreal, Quebec
Canada
H3B 4Y7
Pickford, Barry Walter Vice-President, Taxation 1000, rue de La Gauchetiere Ouest
Bureau 3700
Montreal, Quebec
Canada
H3B 4Y7
Ryan, Marc James V.P., Associate General 1000, rue de La Gauchetiere Ouest
Counsel and Corporate Bureau 3700
Secty. Montreal, Quebec
Canada
H3B 4Y7
Sharpe, Peter Mason Vice-President, Corporate 1000, rue de La Gauchetiere Ouest
Service Bureau 3700
Montreal, Quebec
Canada
H3B 4Y7
Wilson, Lynton Ronald Chairman of the Board 1800, rue de La Gauchetiere Ouest
Bureau 3700
Montreal, Quebec
Canada
H3B 4Y7
</TABLE>
EXHIBIT B
---------
STOCK PURCHASE AGREEMENT
dated as of
June 14, 1998
between
BCE INC.,
as Buyer,
and
THE SELLING SHAREHOLDER
NAMED HEREIN,
as Seller,
relating to the purchase and sale
of
shares of common stock
of
Excel Communications, Inc.
STOCK PURCHASE AGREEMENT
AGREEMENT dated as of June 14, 1998 between BCE Inc., a
corporation organized under the laws of Canada ("Buyer"), and the selling
shareholder named on the signature page hereof (the "Seller").
W I T N E S S E T H
WHEREAS, Seller is a shareholder of Excel Communications, Inc.,
a Delaware corporation with its principal place of business at 8750 North
Central Expressway, Suite 2000, Dallas, Texas 75231 (the "Company");
WHEREAS, the Company, Teleglobe Inc., a corporation organized
under the laws of Canada ("Teleglobe") and North Merger Sub Corporation, a
Delaware corporation ("Merger Sub"), are parties to an Agreement and Plan of
Merger dated as of the date hereof (the "Merger Agreement"), pursuant to which
the Company will merge with and into the Merger Sub (the "Merger"), upon the
terms and subject to the conditions set forth therein; and
WHEREAS, in connection with the Merger, Seller wishes to sell to
Buyer, and Buyer wishes to purchase from Seller, the number of shares of
common stock, par value $0.001 per share, of the Company (the "Common Stock")
listed on Schedule A hereto opposite Seller's name.
The parties hereto agree as follows:
ARTICLE 1
Purchase and Sale
Section 1.1. Purchase and Sale. Upon the terms and subject
to the conditions of this Agreement, at the Closing Seller agrees to sell
to Buyer, and Buyer agrees to purchase from Seller, the number of shares of
Common Stock set forth on Schedule A hereto opposite Seller's name (the
"Shares").
Section 1.2. Purchase Price. The purchase price to be paid by
Buyer at the Closing to Seller for the Shares to be sold and purchased
hereunder shall be U.S.$24.00 per Share, or the aggregate amount set forth
opposite Seller's name. The purchase price shall be paid as provided in
Section 1.03.
Section 1.3. Closing. At the Closing:
(a) Buyer will wire transfer to Seller, in immediately available
funds to an account designated by Seller by written notice to Buyer not later
than two business days prior to the Closing, the purchase price payable for the
Shares sold by Seller to Buyer hereunder; and
(b) Seller will deliver or cause to be delivered to Buyer one or
more certificates for the Shares sold to Buyer hereunder, duly endorsed for
transfer in blank, with any required stock transfer stamps attached.
Section 1.4. Time and Place of Closing. The consummation of
the purchase and sale of the Shares hereunder (the "Closing") will take place
at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New
York, two business days after the satisfaction or waiver of the conditions
described in Article 5, or at such other time or place as Buyer and Seller may
mutually agree.
ARTICLE 2
Representations and Warranties of Seller
Seller represents and warrants to Buyer as of the date
hereof and as of the date of the Closing (the "Closing Date") that:
Section 2.1. Title to Shares. Seller is the sole beneficial
owner, and prior to Closing will be the record owner, of the number of Shares
set forth opposite Seller's name on Schedule A hereto. Seller has, or will
have prior to Closing, good and valid title to such Shares, free and clear of
any security interests, liens, claims, pledges, charges, encumbrances or other
rights or claims of any other person of any kind or any preemptive rights
(collectively, "Encumbrances") other than Encumbrances that will be released
prior to or simultaneously with the Closing. At the Closing, Buyer will
acquire all of Seller's right, title and interest in and to such Shares and
will receive good and valid title to such Shares, free and clear of any and
all Encumbrances created by Seller.
Section 2.2. Organization and Authority. (a) If Seller is a
corporation, partnership, limited liability company or trust (an "Entity"),
Seller is duly incorporated or formed in the United States, validly existing
and (other than in the case of a trust) in good standing under the laws of its
jurisdiction in the state of its incorporation or formation.
(b) If Seller is an Entity, (i) Seller has all corporate,
partnership or other power and authority to execute and deliver this
Agreement, and to consummate the transactions contemplated on its part hereby,
(ii) the execution, delivery and performance by Seller of this Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate, shareholder, partnership or other action
on the part of Seller and (iii) no other action on the part of Seller or its
stockholders or partners, as the case may be, is necessary to authorize the
execution and delivery of this Agreement by Seller or the performance by
Seller of its obligations hereunder.
(c) If Seller is a natural person, Seller is an adult, a
citizen and resident of the United States and is competent to execute and
deliver this Agreement and to perform his or her obligations under this
Agreement. If Seller is married, a spousal consent, in form and substance
attached hereto as Exhibit A, has been duly executed and delivered by, and
constitutes a valid and binding agreement, of Seller's spouse.
(d) This Agreement has been duly executed and delivered by
Seller and constitutes a legal, valid and binding agreement of Seller,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws affecting
creditors' rights generally and subject to general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(e) The address of Seller on the stock transfer books of the
transfer agent and registrar for the Shares is an address located in the
United States.
Section 2.3. No Violation. The execution and delivery of this
Agreement by Seller, and performance by Seller of its obligations hereunder
and the consummation of the transactions contemplated hereby will not,
assuming satisfaction of the condition set forth in Section 5.01(d), (a) to
Seller's knowledge, violate any provision of law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award applicable to
Seller, (b) to Seller's knowledge, require the consent, waiver, approval,
license or authorization or any filing by Seller with any federal governmental
authority (other than any filings required under the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder (the
"1934 Act")) or any person (including without limitation any spouse required
to give consent under the applicable marital property laws), (c) assuming
compliance with the matters referred to in clause (b), violate, result (with
or without notice or the passage of time, or both) in a breach of or give rise
to the right to accelerate, terminate or cancel any obligation under or
constitute (with or without notice or the passage of time, or both) a default
under, any of the terms or provisions of any charter or other governing
document or bylaw of Seller or any agreement, note, indenture, mortgage or
contract to which Seller is a party or by which Seller is bound and which
would have an adverse effect on the ability of Seller to perform its
obligations under this Agreement or (d) to Seller's knowledge, result in the
creation or imposition of any tax or Encumbrance on the Shares, except for
transfer taxes, if any (which will be paid by Seller).
Section 2.4. No Solicitation. Neither Seller, nor anyone
acting on its behalf, has taken or will take any action that would subject the
sale of the Shares as contemplated hereby to the registration provisions of
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "1933 Act") .
Section 2.5. Knowledge of Merger. Seller represents that it
has had the opportunity to seek information regarding the terms of the Merger
Agreement and the transactions contemplated thereby, and to discuss such terms
and transactions with management of the Company, has sufficient knowledge of
financial and business matters so as to be capable of evaluating the merits
and risks of the potential financial or other effects of the Merger
announcement and the Merger on the shares of Common Stock, and has obtained
all of the information that Seller deems necessary for Seller to make an
informed judgment as to the sale of the Shares.
Section 2.6. Finder's Fees. No investment banker, broker,
finder or other intermediary is entitled to a fee or commission from Buyer or
the Company in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of Seller.
ARTICLE 3
Representations and Warranties of Buyer
Buyer represents and warrants to Seller as of the date hereof
and as of the Closing Date that:
Section 3.1. Organization. Buyer is a corporation duly
organized and validly existing under the laws of Canada.
Section 3.2. Authority. Buyer has all corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated on its part hereby. The execution, delivery and
performance by Buyer of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of Buyer. No other action on the part of Buyer or its
stockholders is necessary to authorize the execution and delivery of this
Agreement by Buyer or the performance by Buyer of its obligations hereunder.
This Agreement has been duly executed and delivered by Buyer and constitutes
a legal, valid and binding agreement of Buyer, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting creditors' rights
generally and subject to general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
Section 3.3. No Violation. The execution and delivery of this
Agreement by Buyer, and the performance by Buyer of its obligations hereunder
and the consummation of the transactions contemplated hereby will not: (a)
violate any provision of law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award applicable to Buyer, (b) require the
consent, waiver, approval, license or authorization or any filing by Buyer with
any federal governmental authority (other than a notification form that may be
required to be filed under the Hart-Scott Rodino Antitrust Improvement Act of
1976, as amended (the "HSR Act") (and the expiration or termination of the
waiting period thereunder if so required to be filed), any filings required
under the 1934 Act and any notification to the Federal Communications
Commission that may be required) or (c) assuming compliance with the matters
referred to in clause (b), violate, result (with or without notice or the
passage of time, or both) in a breach of or give rise to the right to
accelerate, terminate or cancel any obligation under or constitute (with or
without notice or the passage of time, or both) a default under, any of the
terms or provisions of any charter or other governing document, bylaw,
agreement, note, indenture, mortgage, contract, order, judgment, ordinance,
regulation or decree to which Buyer is subject or by which Buyer is bound and
which would have an adverse effect on the ability of Buyer to perform its
obligations under this Agreement.
Section 3.4. Securities Act Representation. Buyer
acknowledges that in connection with the transactions contemplated hereby it
is not relying upon any representations, warranties or statements of Seller
other than as set forth in Article 2. Buyer has sufficient knowledge and
experience in investing so as to be able to evaluate the risks and merits of
its investment in the Company and it is able financially to bear the risks of
such investment, including the complete loss thereof. Buyer is an "accredited
investor" within the meaning of Rule 501 of Regulation D under the 1933 Act.
Buyer is fully aware that the Shares constitute restricted securities under
the 1933 Act and that the certificates representing the Shares will bear a
legend restricting the sale or transfer of the Shares. Buyer is not
purchasing any Shares with a view to a distribution or resale of any of such
Shares in violation of the 1933 Act and agrees that it shall not sell any of
such Shares in violation of the 1933 Act.
Section 3.5. Knowledge of Merger. Buyer represents that it
has had the opportunity to seek information regarding the terms of the Merger
Agreement and the transactions contemplated thereby and to discuss such terms
and transactions with management of the Company, has sufficient knowledge of
financial and business matters so as to be capable of evaluating the merits
and risks of the potential financial or other effects of the Merger
announcement and the Merger on the shares of Common Stock, and has obtained
all of the information that Buyer deems necessary for Buyer to make an
informed judgment as to the purchase of the Shares.
Section 3.6. Finder's Fees. No investment banker, broker,
finder or other intermediary is entitled to a fee or commission from Seller or
the Company in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of Buyer.
ARTICLE 4
Covenants
Section 4.1. Efforts to Consummate. Upon the terms and
subject to the conditions of this Agreement, Buyer and Seller agree to use
their respective best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable
to consummate the transactions contemplated by this Agreement. In
furtherance and not in limitation of the foregoing, Buyer agrees, if any
filings are required under the HSR Act, to (i) make any appropriate filings
pursuant to the HSR Act with respect to the transactions contemplated
hereby as promptly as practicable, and in any case no later than June 23,
1998, (ii) supply as promptly as practicable any additional information and
documentary material that may be requested pursuant to the HSR Act, (iii)
request early termination of the waiting period under the HSR Act and (iv)
take all other actions necessary to cause the expiration or termination of
the applicable waiting periods under the HSR Act, as soon as practicable.
In case at any time after the Closing Date any further action is reasonably
necessary or desirable to carry out the purposes of this Agreement, the
proper officers or directors (or persons with similar responsibilities if
Seller is an Entity that is not a corporation) of each party to this
Agreement will take all such reasonably necessary action. No party hereto
will take any action for the purpose of delaying, impairing or impeding the
receipt of any required consent, authorization, order or approval or the
making of any required filing.
Section 4.2. Notices of Certain Events. Each party agrees
that it will, upon obtaining knowledge of any of the following, promptly
notify the other party hereto of: (a) any notice or other communication from
any person alleging that the consent of such person is or may be required in
connection with the transactions contemplated hereby; (b) any notice or other
communication from any governmental or regulatory agency or authority in
connection with the transactions contemplated hereby; (c) any actions, suits,
claims, investigations or proceedings commenced or, to its knowledge
threatened against, relating to or involving or otherwise affecting Buyer or
Seller that relates to this Agreement or the consummation of the transactions
contemplated hereby.
Section 4.3. Public Announcements. Except as required by law
or regulation or the rules of any stock exchange, so long as this Agreement is
in effect, Buyer and Seller agree that they will not, and will use commercially
reasonable efforts to cause their respective agents and affiliates not to,
issue or cause the publication of any press release or other announcement with
respect to or otherwise disclose the transactions contemplated by this
Agreement, the terms thereof or the parties thereto without the consent of the
other party hereto, provided that if any such disclosure is required by law or
regulation or the rules of any stock exchange, the disclosing party will use
its best efforts to obtain confidential treatment of any information so
required to be disclosed.
Section 4.4. Escrow Arrangements. Promptly following the
execution of this Agreement, Seller will deposit one or more certificates
covering the Shares, duly endorsed for transfer or accompanied by stock powers
in blank, with Debevoise & Plimpton, counsel to the Seller (the "Escrow
Agent"), or such other party as Buyer and Seller shall agree. Seller shall use
its reasonable best efforts to cause the delivery of certificates covering the
Shares to the Escrow Agent as soon as practicable. The Escrow Agent will
deliver the Shares to Buyer at Closing, or to Seller if this Agreement is
terminated in accordance with its terms.
Section 4.5. Ownership of Shares. Seller shall retain
beneficial ownership of not less than the number of shares of Common Stock set
forth opposite its name on Schedule A hereto until the Closing, it being
agreed and understood that the Shares held pursuant to the escrow arrangement
described in Section 4.04 will be deemed to be beneficially owned by Seller.
Seller shall not, directly or indirectly, (i) grant any proxies (other than a
revocable proxy granted in connection with a meeting of stockholders) or enter
into any voting trust or other agreement or arrangement with respect to the
voting of any Shares, (ii) sell, assign, transfer, encumber or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment,
transfer, encumbrance or other disposition of, any Shares or (iii) seek or
solicit any transaction or arrangement described in clauses (i) and (ii).
Seller will notify Buyer promptly (and provide all details reasonably
requested by Buyer) if Seller is approached or solicited, directly or
indirectly, by any person with respect to any of the foregoing.
ARTICLE 5
Conditions to Closing
Section 5.1. Conditions to Obligations of Buyer and Seller.
The respective obligations of Buyer and Seller to consummate the Closing are
subject to the satisfaction or waiver of each of the following conditions:
(a) No domestic or foreign governmental authority or other
agency or commission or state court or judicial body of competent jurisdiction
(a "Governmental Authority") shall have enacted, issued, promulgated, enforced
or entered any statute, rule, regulation, injunction or other order (whether
temporary, preliminary or permanent) that is in effect and has the effect of
prohibiting consummation of the transactions contemplated by this Agreement.
(b) No action shall have been commenced by any Governmental
Authority against Buyer or Seller seeking to prohibit the consummation of
transactions contemplated by this Agreement.
(c) Any applicable waiting period under the HSR Act shall have
expired or been terminated, and the Escrow Agent shall have notified Buyer
that the Shares are ready for delivery to Buyer. In the event that the Escrow
Agent has not provided such notice to Buyer by the date set forth in Section
7.01, Buyer shall have the right to extend the date set forth in Section 7.01
until such time as it deems necessary to enable the Shares to be ready for
delivery to Buyer.
(d) The Company and if required its Board of Directors shall have
consented for all applicable purposes, in a form reasonably acceptable to Buyer
and Seller, to the sale of the Shares by Seller to Buyer hereunder, including,
without limitation, for purposes of the Shareholders Agreement, dated June 5,
1997, between the Company and certain shareholders of the Company.
Section 5.2. Conditions to Obligation of Seller. The
obligation of Seller to consummate the Closing is subject to the satisfaction
or waiver by Seller of the following further condition:
(a) The representations and warranties of Buyer contained in this
Agreement shall be true and correct in all material respects at and as of the
Closing Date as if made at and as of such date.
Section 5.3. Conditions to Obligation of Buyer. The
obligation of Buyer to consummate the Closing is subject to the satisfaction
of each of the following further conditions:
(a) The representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects at and as of the
Closing Date as if made at and as of such date.
ARTICLE 6
Survival; Indemnification
Section 6.1. Survival. The representations, warranties,
covenants and agreements of the parties contained in this Agreement shall
survive the Closing for the applicable statute of limitations period,
notwithstanding any investigation by or on behalf of any party before or after
the Closing. Notwithstanding the preceding sentence, the indemnification
obligations set forth in Section 6.02 hereof shall survive the time at which
they would otherwise terminate pursuant to the preceding sentence, if bona
fide notice of the events or other matters giving rise to such right of
indemnity shall have been given to the party against whom such indemnity may
be sought hereunder.
Section 6.2. Indemnification. (a) Seller agrees to indemnify
Buyer on a reasonable periodic basis against any and all liabilities, damages,
losses, costs or expenses whatsoever, including reasonable fees of counsel and
expenses of investigation (collectively, "Losses"), suffered or incurred by
Buyer arising out of or resulting from any breach of any representation or
warranty or non-performance of any covenant or agreement of Seller under this
Agreement.
(b) Buyer agrees to indemnify Seller on a reasonable periodic basis
against any and all Losses suffered or incurred by Seller arising out of or
resulting from any breach of any representation or warranty or non-performance
of any covenant or agreement of Buyer under this Agreement.
(c) If any third party asserts a claim against any indemnified
party for which indemnification would be available under Section 6.02 hereof
(an "Indemnification Claim"), the indemnified party will promptly give notice
of such Indemnification Claim, describing such Indemnification Claim with
reasonable specificity, to the indemnifying party; provided that the failure to
give such notice will not affect the right of the indemnified party to
indemnification hereunder except to the extent that such failure prejudices the
ability of the indemnifying party to defend any Indemnification Claim or take
any other remedial action. The indemnifying party shall be entitled to assume
the defense of such Indemnification Claim, including the employment of counsel
(who may be the indemnifying party's counsel) reasonably satisfactory to the
indemnified party; provided that if the indemnified party reasonably
determines in good faith that its interest with respect to such
Indemnification Claim cannot appropriately be represented by the indemnifying
party, such indemnified party shall have the right to assume control of the
defense of such Indemnification Claim with respect to itself and retain
counsel, including local counsel, separate from indemnifying party's counsel.
In addition, in the event that such indemnifying party, within a reasonable
time after notice of any such Indemnification Claim, fails to defend any
indemnified party, such indemnified party will (upon further notice to such
indemnifying party) have the right to undertake its defense of such
Indemnification Claim for the account of such indemnifying party and to have
its expenses reimbursed promptly with respect to such Indemnification Claim.
Regardless of which party is controlling the defense of any Indemnification
Claim, both the indemnifying party and the indemnified party shall act in good
faith and no settlement of such Indemnification Claim may be agreed to without
the written consent of the indemnifying party, which consent shall not be
unreasonably withheld. The controlling party shall deliver, or cause to be
delivered, to all applicable indemnified parties copies of all correspondence,
pleadings, motions, briefs, appeals or other written statement relating to or
submitted in connection with the defense of any such Indemnification Claim,
and timely notices of any hearing or other court proceeding relating to such
Indemnification Claim. No indemnifying party shall, without the written
consent of the applicable indemnified party, effect a settlement or compromise
of, or consent to the entry of any judgment with respect to, any Indemnified
Claim (whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment includes
an unconditional release of such indemnified party for all liability arising
out of or relating to such Indemnified Claim and involves the payment by the
indemnifying party of only monetary damages. Notwithstanding the foregoing,
in any matter no indemnifying party shall be liable under this Agreement for
the fees and expenses of more than one counsel for Buyer or Seller, as the
case may be, in addition to one local counsel.
(d) An indemnifying party shall also be liable for and pay
promptly the fees and expenses (including the fees and expenses of counsel)
incurred by an indemnified party in enforcing its indemnification rights
hereunder.
(e) Notwithstanding the foregoing, in no event shall any
indemnifying party be obligated to indemnify any indemnified party in
connection with an Indemnification Claim except to the extent that the
basis of such Indemnification Claim constitutes a breach of Seller's
representations or warranties contained in Sections 2.01 to 2.04 or Section
2.06 or a breach of Buyer's representations or warranties contained in
Sections 3.01 to 3.04 or Section 3.06 or non-performance of any covenant or
agreement by either party under this Agreement.
ARTICLE 7
Termination
Section 7.1. Termination. This Agreement may be terminated at
any time prior to the Closing by mutual written agreement of Buyer and
Seller. This Agreement shall automatically terminate if the Merger
Agreement is terminated prior to the Closing hereunder. Notwithstanding
the foregoing, this Agreement shall automatically terminate if the Closing
shall not have occurred on or before July 31, 1998, unless extended as set
forth in Section 5.01(c) or otherwise agreed to in writing by the parties
hereto.
Section 7.2. Effect of Termination. If this Agreement is
terminated pursuant to Section 7.01, all further obligations of the parties
hereto under this Agreement shall terminate without further liability or
obligation of any party to any other party, including liability for damages,
except that (x) Section 4.03, this Section 7.02 and Section 8.02 shall survive
the termination hereof and (y) no such termination shall relieve any party
hereto from liability for breach of this Agreement.
ARTICLE 8
Miscellaneous
Section 8.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
if to Buyer, to:
BCE Inc.
1000, rue de La Gauchetiere O.
Bureau 3700
Montreal (Quebec)
H3B 4Y7
Attn: Vice President and Corporate Secretary
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Attention: Dennis Hersch/John Buttrick
Fax: (212) 450-4800
if to Seller, to the address set forth on Schedule A hereto:
with a copy to:
Debevoise & Plimpton
875 Third Avenue
New York, N.Y. 10022
Attention: Robert F. Quaintance, Jr.
Fax: (212)909-6836
All such notices, requests and other communications shall be deemed received
on the date of receipt by the recipient thereof if received prior to 5 p.m. in
the place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to
have been received until the next succeeding business day in the place of
receipt.
Section 8.2. Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby will
be paid by the party incurring such cost or expense.
Section 8.3. Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter of
this Agreement and supersedes all prior agreements and understandings, both
oral and written, between the parties with respect to the subject matter of
this Agreement.
Section 8.4. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto.
Section 8.5. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed, in the case of an amendment, by Buyer and Seller,
or in the case of a waiver, by the party against whom the waiver is to be
effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights
or remedies provided by law.
Section 8.6. Governing Law. This Agreement shall be governed
by and construed in accordance with the law of the State of New York, without
regard to the conflicts of law rules of the State of New York.
Section 8.7. WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION.
(a) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(b) THE PARTIES AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF,
AND TO WAIVE ANY OBJECTION AS TO VENUE IN, THE FEDERAL OR STATE COURTS LOCATED
IN THE COUNTY OF NEW YORK, STATE OF NEW YORK FOR THE RESOLUTION OF ANY LEGAL
PROCEEDINGS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. SERVICE OF PROCESS IN ANY ACTION ARISING OUT OF OR
RELATING TO THIS AGREEMENT SHALL BE EFFECTIVE IF DELIVERED OR SENT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 8.01 HEREOF.
Section 8.8. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have
received a counterpart hereof signed by the other party hereto.
Section 8.9. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 8.10. Specific Performance. The parties hereto
acknowledge that, in view of the uniqueness of the parties hereto and the
transactions contemplated hereby, the parties hereto would not have an
adequate remedy at law for money damages in the event that this Agreement were
not performed in accordance with its terms, and therefore agree that the
parties shall be entitled to specific enforcement of the terms hereof in
addition to any other remedy to which the parties hereto may be entitled at
law or in equity.
Section 8.11. Representations, Warranties, Covenants and
Agreements. References in representations, warranties, covenants and
agreements in this Agreement to the "transactions contemplated by this
Agreement" (and similar references) shall not be deemed to include the Merger.
The parties agree that they are making no representations and warranties
except as expressly set forth herein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
BCE INC.
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
SCHEDULE A
Seller's Name Number of Shares to
and Address be Sold by Seller Purchase Price
- ------------- ------------------- --------------
EXHIBIT A
SPOUSAL CONSENT
---------------
I, the undersigned, hereby certify that:
1. I am the spouse of [spouse's name]
2. I have read the Stock Purchase Agreement (the "Stock
Purchase Agreement") dated as of June [14], 1998 between BCE Inc. ("BCE") and
the selling shareholder named therein (the "Selling Shareholder"), and have
had the opportunity to consult independent legal counsel regarding its
contents.
3. I understand that, pursuant to the provisions of the Stock
Purchase Agreement, my spouse, the Selling Shareholder, agrees to sell to BCE
certain common stock of Excel Communications Inc. (the "Shares") as set forth
in the Stock Purchase Agreement.
4. I hereby consent to the terms of the Stock Purchase
Agreement and to their application to any community property interest I may
have in the Shares (it being understood and agreed that this Spousal Consent
shall in no way be construed to create any such interest). I agree that I
will take no action at any time to hinder the operation of the Stock Purchase
Agreement on the Shares or any interest I may have in the Shares.
Executed as of the ____ day of June, 1998 at
__________________.
-----------------------------
Name
