Exhibit 4.5
AGREEMENT
This Agreement ("AGREEMENT") is entered into as of this 30th day of
December, 1997 by and between Warburg, Xxxxxx Investors, L.P., a Delaware
corporation ("WARBURG"), and Xxxxx & Xxxxx Company, a Delaware Corporation (the
"COMPANY").
WITNESSETH
WHEREAS, Warburg beneficially owns 10,443,339 shares of Common Stock, par
value $.01 per share, of the Company, through its ownership of (i) 9,105,981
shares of Common Stock, and (ii) currently exercisable warrants to purchase an
aggregate of 1,337,358 shares of Common Stock, such shares (assuming exercise of
the warrants) representing in excess of 50% of the voting power of the Company's
voting stock;
WHEREAS, the parties hereto have been advised by Ernst & Young, LLP, the
Company's independent public accountants that pooling of interests accounting
treatment is generally unavailable for a transaction involving a company that
within two years prior to the transaction had a shareholder that controlled more
than 50% of the voting power of such company; and
WHEREAS, the parties have been further advised by Ernst & Young, LLP, that
upon execution of this Agreement, Warburg will be deemed to have divested itself
of voting power in excess of the 50% limitation for the purposes of the pooling
of interest accounting rules referred to above;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each party, the parties hereto, intending to be legally bound,
agree as follows:
1. VOTING
At any time when a matter is brought to the vote of the Company's
shareholders and Warburg beneficially owns shares of the Company voting stock
representing more than 50% of the voting power of the Company's shares entitled
to vote on such matter (the "LIMIT"), then:
(a) Warburg may vote its shares of voting stock up to the Limit in
its discretion; and
(b) Warburg shall vote its shares of voting stock in excess of the
Limit in the same proportion as the shares of voting stock voted by holders
other than Warburg are voted on such matter.
2. AMENDMENT OR TERMINATION
Except as set forth in paragraph 3 below, this Agreement may not be
amended or terminated without the concurrence of:
(a) a majority of the Directors of the Board of the Company that are
not officers, employees, members or partners of Warburg or the Company; or
(a) a majority of the votes of the shares of the Company voting stock
voting on the matter at a meeting duly called other than shares of Company
voting stock beneficially owned by Warburg.
3. ADDITIONAL RIGHT TO TERMINATION
This Agreement shall also be terminated by either Warburg or the
Company if it shall have received an opinion from a certified public accounting
firm contrary to the advice referred to in the third "Whereas" clause hereto and
such opinion is delivered to all the parties hereto.
4. COUNTERPARTS
This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5. NOTICES
All notices, requests, demands and other communications under this
Agreement shall be in writing, shall be given by one of the methods specified
below, and shall be deemed to have been duly given (i) on the date of service if
served personally on the party to whom notice is to be given, (ii) on the second
business day after delivery to an overnight courier service, provided receipt of
delivery has been confirmed, or (iii) upon receipt by the transmitting party of
confirmation or answer-back if delivery is by telex or telefax.
If to Warburg:
Warburg, Xxxxxx Investors, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Company:
Xxxxx & Xxxxx Company
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7. GOVERNING LAW
This Agreement shall be construed in accordance with, and governed by,
the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties of this Agreement have duly executed it as
of the date set forth above.
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg, Xxxxxx & Company, its general partner
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Partner
XXXXX & XXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President & General Counsel
