VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 20, 1998 (the "Agreement"), by and
between Saratoga Partners III, L.P., a New York limited partnership
("Saratoga"), Xxxxxxx Holdings Inc., a Delaware corporation (the "Company"), and
Co-Investment Partners, L.P., a Delaware limited partnership ("Purchaser").
WHEREAS, Xxxxxxx Holdings Inc. (the "Company") proposes to enter into an
agreement (the "Subscription Agreement") with Purchaser providing for the sale
to Purchaser of 1,000,000 units, each unit consisting of one share of common
stock of the Company (the "Common Stock") and one share of Series B Preferred
Stock of the Company (the "Preferred Stock").
WHEREAS, in connection with Purchaser's purchase of Units, the Company,
Saratoga and Purchaser wish to set forth their understanding relating to the
voting of 672,000 of the shares of Common Stock to be purchased by the Purchaser
(the "Shares").
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Irrevocable Proxy. Purchaser hereby irrevocably appoints Saratoga, as
attorney-in-fact and proxy of Purchaser with respect to the Shares, at any
annual or special meeting of stockholders of the Company, and to execute, with
respect to the Shares, any written consent of stockholders with respect to any
and all matters on which holders of Common Stock of the Company are entitled to
vote. This power of attorney and proxy is irrevocable and coupled with an
interest.
2. Certain Representations and Warranties Purchaser represents and warrants
to the Company that upon consummation of the purchase under the Subscription
Agreement: (i) Purchaser is the record owner of the Shares and has full and
unrestricted power to vote the Shares; (ii) the execution, delivery and
performance by Purchaser of this Agreement have been duly authorized by all
necessary actions, if any; (iii) Purchaser has full power and authority to sign
this Agreement; and (iv) the execution, delivery and performance of this
Agreement do not and will not contravene or constitute a default under, or give
rise to a right of termination, cancellation or acceleration of any right or
obligation of Purchaser under, any provision of applicable law or regulation or
of any agreement, judgment, order, decree or other instrument binding on
Purchaser.
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3. Miscellaneous.
(a) Successors and Assigns. This Agreement will be binding upon and inure
to the benefit of the parties hereto and their respective heirs,
representatives, successors and assigns.
(b) Restrictions on Transfer. Purchaser understands that the Shares are
subject to restrictions on transfer pursuant to a Stockholders'
Agreement dated as of November 26, 1997 (the "Stockholders'
Agreement") among Saratoga, the Company, and certain other management
and non-management investors.
(c) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof.
(d) Amendment. This Agreement may not be amended except by an instrument
signed by the parties hereto.
(e) Termination. This Agreement will terminate upon at least 20% of the
outstanding Common Stock being offered and sold in a public offering
registered under the Securities Act of 1933.
(f) Governing Law. This Agreement will be governed by, and construed in
accordance with, the Laws of the State of New York, without giving
effect to the principles of conflict of laws of such State.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
CO-INVESTMENT PARTNERS, L.P.
By: CIP Partners, LLC, its
general partner
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Member
XXXXXXX HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
SARATOGA PARTNERS III, L.P.
By: DR Associates IV, L.P.,
its General Partner
By: Xxxxxx, Read Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
