EXECUTION COPY
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") dated as of June 18, 2002 is by and
between Amplifon (USA), Inc., a Delaware corporation (the "Buyer"), and Warburg,
Xxxxxx Ventures, L.P., a Delaware limited partnership ("Warburg").
RECITALS
Buyer and Sonus Corp., a corporation organized under the laws of the Yukon
Territory, Canada (the "Seller"), have entered into a Purchase Agreement (as
such agreement may be executed and amended from time to time, the "Purchase
Agreement"), pursuant to which (and subject to the terms and conditions
specified therein) Buyer will acquire, directly or indirectly, all of the
subsidiaries and certain of the assets of the Seller.
As a condition to Buyer's negotiating and entering into the Purchase
Agreement, Buyer requires that Warburg enter into, and Warburg has agreed to
enter into, this Agreement with Buyer.
AGREEMENT
To implement the foregoing and in consideration of the mutual agreements
contained herein, the parties hereby agree as follows:
1. Representations and Warranties of Warburg. Warburg represents and
warrants to Buyer as follows:
(a) Ownership of Stock.
(1) Warburg is the record holder and beneficial owner of shares of
Series A Preferred Shares, Series B Preferred Shares and Warrants to
acquire Common Shares of the Seller as is set forth on Schedule I attached
hereto (such shares and warrants, together with any shares of capital stock
of the Seller acquired of record or beneficially by Warburg in any capacity
after the date hereof and prior to the termination hereof, whether upon
exercise of options, warrants, conversion of convertible securities,
purchase, exchange or otherwise, shall constitute the "Stock").
(2) On the date hereof, the Stock set forth on Schedule I hereto
constitutes all of the outstanding shares and warrants to acquire shares of
the share capital of the Seller owned of record or beneficially by Warburg.
Warburg does not have record or beneficial ownership of shares of the share
capital of the Seller not set forth on Schedule I hereto.
(3) Warburg has sole power of disposition with respect to all of the
Stock, with no restrictions on such right, subject to applicable federal
securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. Warburg has the legal capacity, power and
authority to enter into and perform all of Warburg's obligations under this
Agreement. The execution, delivery and performance of this Agreement by Warburg
will not violate any other agreement to
which Warburg is a party or by which Warburg is bound including, without
limitation, any trust agreement, voting agreement, shareholders agreement,
voting trust, partnership or other agreement. This Agreement has been duly and
validly executed and delivered by Warburg and constitutes a valid and binding
agreement of Warburg, enforceable against Warburg in accordance with its terms.
(c) No Conflicts. (1) No filing with, and no permit, authorization, consent
or approval of, any state or federal public body or authority is necessary for
the execution of this Agreement by Warburg and the consummation by Warburg of
the transactions contemplated hereby and (2) neither the execution and delivery
of this Agreement by Warburg nor the consummation by Warburg of the transactions
contemplated hereby nor compliance by Warburg with any of the provisions hereof
shall (A) conflict with or result in any breach of any agreement or
organizational documents applicable to Warburg, (B) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which Warburg is a party or by which Warburg or any of
Warburg's properties or assets may be bound or (C) violate any order, writ,
injunction, decree, judgment, statute, rule or regulation applicable to Warburg
or any of Warburg's properties or assets.
(d) Liens. The Stock and the certificates or other instruments representing
the Stock are now and at all times during the term hereof will be held by
Warburg, or by a nominee or custodian for the benefit of Warburg, free and clear
of all liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever.
(e) Acknowledgement. Warburg understands and acknowledges that Buyer is
entering into the Purchase Agreement in reliance upon Warburg's execution and
delivery of this Agreement with Buyer.
2. Certain Covenants of Warburg. Except in accordance with the terms of
this Agreement, Warburg covenants and agrees as follows:
(a) No Solicitation. From and after the date of this Agreement until the
earlier of the termination of this Agreement or the Closing Date (as defined in
the Purchase agreement), Warburg will not, and will not permit any of its
partners, employees, representatives, advisors, agents or other intermediaries,
to, directly or indirectly, (1) solicit, initiate or encourage any Acquisition
Proposal (as defined in the Purchase Agreement), (2) engage in negotiations or
discussions concerning, or provide any non-public information to any person or
entity in furtherance of or in connection with, any Acquisition Proposal, or (3)
negotiate, respond to any inquiries or proposals, or otherwise engage in
discussions with any Person, concerning any Acquisition Proposal. If Warburg
receives any such inquiry or proposal or is involved in connection with an
Acquisition Proposal, Warburg shall then promptly inform Buyer in writing of the
terms and conditions, if any, of such inquiry, solicitation, negotiation or
proposal and the identity of the person making it. Warburg will immediately
cease and cause to be terminated any
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existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
(b) Restriction on Transfer, Proxies and Noninterference. Warburg shall
not, directly or indirectly: (1) except pursuant to the terms of the Purchase
Agreement, offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of (including by gift), enforce or permit the execution of the
provisions of any redemption agreement with the Seller or enter into any
contract, option or other arrangement or understanding with respect to, or
consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of the Stock or any interest
therein; (2) grant any proxies or powers of attorney with respect to any Stock,
deposit any Stock into a voting trust or enter into a voting agreement with
respect to any Stock, except as provided in this Agreement; or (3) take any
action that would make any representation or warranty of Warburg contained
herein untrue or incorrect or have the effect of preventing or disabling Warburg
from performing Warburg's obligations under this Agreement.
(c) Voting of Stock. At any meeting (whether annual or special and whether
or not an adjourned or postponed meeting) of the shareholders of the Seller (the
"Meeting"), however called, or in connection with any written consent or
resolutions of the shareholders of the Seller, Warburg will appear at the
Meeting or otherwise cause the Stock entitled to vote on any matter presented to
be counted as present thereat for purposes of establishing a quorum and vote or
consent (or cause to be voted or consented) the Stock to the extent such Stock
is entitled to vote or consent, except as otherwise agreed to in writing in
advance by the Buyer in its sole discretion, in favor of the transactions
contemplated by the Purchase Agreement and any other business combination with
Buyer and against the following actions: (1) any Acquisition Proposal or (2) any
other action which is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone or materially adversely affect the transactions
contemplated by this Agreement or the Purchase Agreement. Warburg agrees that it
will not enter into any agreement or understanding with any Person the intended
or reasonably anticipated effect of which would be inconsistent with or
violative of any provision contained in this Section 2(c). Any such vote or
consent shall be deemed a consent for purposes of Section 4(m) of the Securities
Purchase Agreements, dated as of October 1, 1999 and November 21, 1997, by and
between Seller and Warburg.
(d) Granting of Proxy; Appointment of Proxy. Warburg hereby revokes any and
all previous proxies granted with respect to the Stock. Warburg shall, from time
to time, within five days after Buyer's request, deliver or cause to be
delivered to the Buyer duly executed proxies in favor of Buyer or Buyer's agent
or nominee voting in favor of the transactions contemplated by the Purchase
Agreement and voting against any action that Warburg has agreed to vote against
pursuant to Section 2(c) hereof, together with a certified copy of the
directors' resolutions authorizing such proxies, if applicable, and Warburg
agrees that it will not revoke any such proxy prior to the termination of this
Agreement in accordance with Section 6 hereof.
(e) Escrow Agreement. Warburg agrees to execute and deliver to the Buyer
the Escrow Agreement in the form attached as Exhibit F to the Purchase
Agreement.
3. Further Assurances. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver such
additional documents and
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take all such further action as may be necessary to consummate and make
effective the transactions contemplated by this Agreement.
4. Certain Events. This Agreement and the obligations hereunder shall
attach to the Stock and shall be binding upon any Person to which legal or
beneficial ownership of the Stock shall pass, whether by operation of law or
otherwise, including without limitation Warburg's successors and assigns.
5. Stop Transfer. Warburg shall not request that the Seller or its transfer
agent register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Stock, unless such transfer is
made in compliance with this Agreement.
6. Termination. The obligations set forth in this Agreement will terminate
upon termination of the Purchase Agreement in accordance with Section 9.1(a),
(b), (c), (d), (e) or (f) thereof, and shall terminate on October 31, 2002 if
the Purchase Agreement is terminated in accordance with Section 9.1(g) thereof.
7. Miscellaneous.
(a) Entire Agreement; Assignment. This Agreement (1) constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and (2) shall not
be assigned by operation of law or otherwise without the prior written consent
of the other party.
(b) Amendments. This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
(c) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given; as of the date of delivery,
if delivered personally; upon receipt of confirmation, if telecopied or upon the
next business day when delivered during normal business hours to an overnight
courier service, such as Federal Express, in each case to the parties at the
following addresses or at such other addresses as shall be specified by the
parties by like notice; unless the sending party has knowledge that such notice
or other communication hereunder was not received by the intended recipient:
If to Warburg:
Warburg Pincus LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Fax: 212 -878-9361
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with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
If to Buyer:
Amplifon (USA), Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Fax: 763/000-0000
with a copy to:
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Fax: 312/000-0000
312/577-8753
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(d) Governing Law. The validity, interpretation and effect of this
Agreement shall be governed exclusively by the laws of the State of Delaware,
without giving effect to the principles of conflict of laws thereof.
(e) Costs. Each party will be solely responsible for and bear all of its
own respective expenses, including, without limitation, expenses of legal
counsel, accountants, and other advisors, incurred at any time in connection
with pursuing or consummating this Agreement or the Purchase Agreement and the
transactions contemplated thereby.
(f) Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement.
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(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but both of which
shall constitute one and the same Agreement.
(h) Descriptive Headings. The descriptive headings used herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
(i) Severability. If any term or provision of this Agreement or the
application thereof to any party or set of circumstances shall, in any
jurisdiction and to any extent, be finally held invalid or unenforceable, such
term or provision shall only be ineffective as to such jurisdiction, and only to
the extent of such invalidity or unenforceability, without invalidating or
rendering unenforceable any other terms or provisions of this Agreement under
any other circumstances, and the parties shall negotiate in good faith a
substitute provision which comes as close as possible to the invalidated or
unenforceable term or provision, and which puts each party in a position as
nearly comparable as possible to the position it would have been in but for the
finding of invalidity or unenforceability, while remaining valid and
enforceable.
(j) Definitions; Construction. For purposes of this Agreement:
(1) "Beneficially own" or "beneficial ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act")), including pursuant to any
agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
beneficially owned by a Person shall include securities beneficially owned
by all other Persons with whom such Person would constitute a "group" as
described in Section 13(d)(3) of the Exchange Act.
(2) "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
(3) In the event of a stock dividend or distribution, or any change in
the capital stock of the Seller by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
"Stock" shall be deemed to refer to and include the Stock as well as all
such stock dividends and distributions and any shares into which or for
which any or all of the Stock may be changed or exchanged.
[signature page follows]
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IN WITNESS WHEREOF, Buyer and Warburg have caused this Agreement to be
duly executed as of the day and year first written above.
AMPLIFON (USA), INC.
By: /s/ Xxxxxxx X. Xxxxx
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Its: President
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WARBURG, XXXXXX VENTURES, L.P.
By: Warburg, Xxxxxx & Co., its general partner
By: /s/ Xxxxx X. Xxxxxxxx
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Its: Partner
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SCHEDULE I
Warrants
Series A Series B to acquire
Preferred Preferred Common
Record Holder Shares Shares Shares
Warburg, Xxxxxx Ventures, 2,666,666 2,500,000 2,000,000
L.P.
