Exhibit 4
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EXECUTION COPY
VOTING AGREEMENT
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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
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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
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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.
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(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
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Series A Series B to acquire
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Preferred Preferred Common
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Record Holder Shares Shares Shares
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Warburg, Xxxxxx Ventures, 2,666,666 2,500,000 2,000,000
L.P.
