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EXHIBIT 4.2
VOTING AGREEMENT
This Voting Agreement is made and entered into as of _____________, 2001 by and
between Xxxxxx Industries, Ltd., a Bermuda corporation ("Xxxxxx Bermuda") and
Xxxxxx Industries, Inc., an Ohio corporation ("Xxxxxx Ohio").
WHEREAS, Xxxxxx Ohio and Xxxxxx Bermuda will enter into a series of transactions
("Reorganization"), whereby Xxxxxx Ohio will transfer certain assets to Xxxxxx
Bermuda in exchange for shares of Class B common stock of Xxxxxx Bermuda, and
thereafter, Xxxxxx Ohio will become a wholly-owned subsidiary of Xxxxxx Bermuda;
and
WHEREAS, Xxxxxx Ohio desires to ensure that the rights of its shareholders,
which will become shareholders of Xxxxxx Bermuda in the Reorganization, are not
adversely affected through Xxxxxx Ohio's ownership of Xxxxxx Bermuda stock.
NOW THEREFORE, as an inducement to Xxxxxx Bermuda to enter into the
Reorganization, and in consideration of the mutual agreements contained herein,
the parties agree as follows:
I. Representations
Xxxxxx Ohio and Xxxxxx Bermuda each represent and warrant to the other that:
a. it has the requisite power and authority to enter into and
perform this Agreement;
b. the execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action;
c. this Agreement has been duly executed by an authorized officer
of such party; and
d. the performance of this Agreement by it will not require it to
obtain the consent, waiver or approval of any person and will
not violate, result in a breach of or constitute a default
under any statute, regulation, agreement, judgment, consent,
or decree by which it is bound.
II. Quorum
Xxxxxx Ohio agrees that, at any time Xxxxxx Ohio owns any Xxxxxx Bermuda capital
stock and such stock has rights to vote at any annual, special or other general
meeting of Xxxxxx Bermuda shareholders, and at any adjournment or adjournments
thereof, it shall cause all such capital stock to be present in person or by
proxy at such meeting for purposes of determining whether a quorum is present at
any such meeting.
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III. Voting
Xxxxxx Ohio agrees that, at any time Xxxxxx Ohio owns any Xxxxxx Bermuda capital
stock and such stock has rights to vote at any annual, special or other general
meeting or pursuant to a written resolution of Xxxxxx Bermuda shareholders,
Xxxxxx Ohio will vote such shares for and against and abstain from voting with
respect to any proposal in the same proportion that the holders of the
outstanding shares of Class A common stock held and voted by non-affiliates of
Xxxxxx Ohio have voted for and against and abstained from voting with respect to
such proposal.
IV. Transfer Restrictions
x. Xxxxxx Ohio hereby agrees that all transfers of Xxxxxx Bermuda capital
stock shall be made in accordance with the applicable rules of the New
York Stock Exchange, or any other exchange on which the capital stock
of Xxxxxx Bermuda is listed.
x. Xxxxxx Ohio agrees that any transfer of Xxxxxx Bermuda stock by it to
an affiliate of Xxxxxx Ohio will be subject to this Agreement and such
transferee will agree in writing to be bound by the terms and
provisions of this Agreement.
V. Miscellaneous Provisions
a. Binding Effect. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Neither this
Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto without the prior
written consent of the other parties.
b. Amendments. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written
agreement executed by each of the parties hereto. However, any party
may waive any condition to the obligations of any other party
hereunder.
c. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed
to have been duly given if delivered by hand or mail, certified or
registered mail (return receipt requested) with postage prepaid:
If to the Xxxxxx Bermuda, to:
Xxxxxx Industries, Ltd.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Office of the Corporate Secretary
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If to Xxxxxx Ohio, to:
Xxxxxx Industries, Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
or to such other address as any party may have furnished to
the others in writing in accordance herewith.
d. Applicable Law. This Agreement and the legal relations among the
parties hereto arising from this Agreement shall be governed by and
construed in accordance with the laws of [Bermuda], without reference
to or application of any conflicts of law principles.
e. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed original but all of
which shall constitute one and the same instrument.
f. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties,
covenants or undertakings, other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and made and entered into as of the date first set forth above.
XXXXXX INDUSTRIES, LTD.
By:
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XXXXXX INDUSTRIES, INC.
By:
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