EXHIBIT P
AMENDED AND RESTATED VOTING AGREEMENT
This AMENDED AND RESTATED VOTING AGREEMENT (the "Agreement") is made
as of the date set forth on the signature page hereof by and among (i) Xxxxxx
Xxxxxxx Xxxx Xxxxxx & Co., a Delaware corporation (the "Company"), as
successor to Xxxxxx Xxxxxxx Group Inc. ("Xxxxxx Xxxxxxx Group"), (ii) State
Street Bank and Trust Company (the "Trustee"), as trustee under the Trust
Agreement dated March 5, 1991 (the "Trust Agreement"), and (iii) each other
person subject to this Agreement or a voting agreement substantially similar
to this Agreement (collectively, the "Parties").
R E C I T A L S
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WHEREAS, Xxxxxx Xxxxxxx Group and the Trustee entered into the
voting agreement, dated as of March 5, 1991 (the "Original Voting Agreement"),
by and among Xxxxxx Xxxxxxx Group, the Trustee and each other person signing a
voting agreement substantially in the form of the Original Voting Agreement;
and
WHEREAS, effective May 31, 1997, Xxxxxx Xxxxxxx Group merged with
and into the Company and the Company succeeded to Xxxxxx Xxxxxxx Group's
rights and obligations under the Original Voting Agreement; and
WHEREAS, various awards (either outstanding or future) of shares of
the Company's common stock, par value $0.01 per share ("Company Stock"),
options to acquire shares of Company Stock, and stock units payable in the
form of shares of Company Stock under certain plans and arrangements of the
Company, are conditioned on the individuals who receive such awards agreeing
to the terms of an agreement substantially in the form of the Original Voting
Agreement; and
WHEREAS, the Parties now desire to amend and restate the Original
Voting Agreement.
A G R E E M E N T
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The Parties hereto agree as follows:
1. Definitions. The terms used herein that are not otherwise defined herein,
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unless the context otherwise requires, shall have the meanings specified
(i) in the instrument documenting the award pursuant to which the stock
units, options to acquire Shares of Company Stock, and Shares (as defined
below) subject to the provisions of this Agreement were granted, and (ii)
in the Company plan or arrangement pursuant to which such award was
granted. For purposes of this Agreement only, the following words and
phrases shall have the following meanings, unless the context otherwise
requires:
(a) The term "own," when used in reference to Shares, shall mean any
Shares owned of record or beneficially.
(b) The term "Shares" shall mean shares of Stock (as defined below).
(c) The term "Stock" shall mean Company Stock or stock of any successor
to the Company by merger or otherwise.
2. Restrictions on Voting of Shares. The Trustee agrees to be bound by the
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following provisions with respect to a Preliminary Vote (as defined
below) in respect of the Shares.
(a) Preliminary Vote. Before any vote of the stockholders of the Company
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at a meeting called with respect to any corporate action or before
action is taken by stockholders of the Company by written consent, a
vote (the "Preliminary Vote") shall be taken of those stockholders
of the Company who are subject (i) to this Agreement, (ii) to
Article IV of that certain stockholders' agreement, dated February
14, 1986, as amended (the "Stockholders' Agreement"), among the
Company, as successor to Xxxxxx Xxxxxxx Group, and the stockholders
listed in Appendix A thereto (as the same may be supplemented,
amended and modified from time to time), and (iii) to any other
agreement to which the Company and one or more stockholders of the
Company are parties containing provisions substantially similar to
those contained in this Section 2, whether now in existence or
hereinafter entered into. Such Preliminary Vote shall be taken in
accordance with procedures established from time to time by the
Board or a committee designated by the Board, upon all such matters
upon which such stockholder vote or other action is proposed to be
taken. In connection with such Preliminary Vote, the Trustee shall
be permitted to vote the Shares then owned by the Trustee in the
manner set forth in the Trust Agreement.
(b) Voting by the Trustee. At any meeting of the stockholders of the
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Company called to vote with respect to any corporate action, or
where action by stockholders of the Company is taken by written
consent, the Trustee shall be required to vote or act by written
consent with respect to all the Shares corresponding to stock units
awarded to Trust Beneficiaries (as such term is defined in the Trust
Agreement) then owned by the Trustee, as trustee, on all such
matters on which action is proposed to be taken in accordance with
the vote of the majority of the Shares present (in person or by
proxy) and voting in the Preliminary Vote.
(c) Proxy Requirement. For purposes of effecting any vote described in
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Section 2(b) of this Agreement, the Trustee shall be required to
grant to the Secretary of the Company, or any officer designated in
writing by the Secretary at least five (5) days prior to the meeting
of stockholders of the Company called to vote with respect to any
action or the taking of action by stockholders of the Company by
written consent, a proxy (i) to vote the Trustee's Shares
corresponding to stock units awarded to Trust Beneficiaries at such
meeting or to take such action by written consent with respect to
such Shares, in each case in accordance with Section 2(b) of this
Agreement, and (ii) to vote such Shares in such proxyholder's
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discretion upon any other business which properly comes before such
meeting. The Trustee shall agree that any such proxy so granted
shall not be revoked prior to any such meeting or the taking of any
such action by written consent.
(d) Lapse of Restrictions Upon Transfer of Shares. The Trustee shall not
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be bound by this Agreement as to Shares that are no longer held in
trust by the Trustee but such Shares shall continue to be subject to
this Agreement if the Trust Beneficiary is a party to this Agreement
by reason of being subject to a voting agreement containing
provisions substantially similar to those contained in this Section
2, it being recognized that a release by the Company of persons
subject to such voting agreements containing provisions
substantially similar to those contained in Section 2 shall
terminate the application of this Agreement as to Shares held by
such persons.
3. Term. The undertakings and covenants of the undersigned set forth in this
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Agreement, including, without limitation, the covenants of the
undersigned with respect to the voting of Shares shall continue in full
force and effect through and including May 31, 2022 unless previously
renewed or extended, or until they have terminated or expired in
accordance with the terms hereof.
4. Successors and Assigns. This Agreement and all the terms and provisions
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hereof shall be binding upon and inure to the benefit of the Parties and
their respective successors and assigns, including any successors by
merger or otherwise.
5. Signature in Counterparts. This Agreement may be signed in counterparts,
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each of which shall be an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the entities named below has caused this
Agreement to be executed by its duly authorized representative as of this 14th
day of December, 1999.
XXXXXX XXXXXXX XXXX XXXXXX & CO.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
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