EXHIBIT 4.3
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is made and entered into as of
October 31, 2001 by and between Xxxxxxxxx-Xxxx Company Limited, a Bermuda
company ("IR-Limited"), and Xxxxxxxxx-Xxxx Company, a New Jersey corporation
("IR-New Jersey").
PRELIMINARY STATEMENTS
A. IR-Limited and IR-New Jersey will enter into a series of transactions whereby
(i) IR-New Jersey and certain of its direct or indirect subsidiaries (the
"Subsidiaries") will transfer certain assets and issue certain debt to
IR-Limited in exchange for Class B common shares of IR-Limited, and (ii) IR-New
Jersey will become a wholly-owned, indirect subsidiary of IR-Limited and the
Subsidiaries will become direct or indirect subsidiaries of IR-Limited
(collectively, the "Reorganization").
B. While Class B common shares are denominated in IR-Limited's Bye-laws as
non-voting, such shares may be required to have voting rights in certain limited
circumstances under Bermuda law.
C. IR-New Jersey and IR-Limited desire to ensure that (i) the voting rights of
IR-New Jersey shareholders that become members of IR-Limited in the
Reorganization will not be adversely affected as a result of IR-New Jersey's and
the Subsidiaries' ownership of IR-Limited Class B common shares and (ii) if the
Class B common shares are granted a vote under Bermuda law, such vote is
effectively nullified with respect to shares held by IR-New Jersey and the
Subsidiaries (whether such Subsidiaries are now existing or hereafter
organized).
AGREEMENT
The parties, intending to be legally bound, agree as follows:
ARTICLE 1
REPRESENTATIONS
Each of IR-New Jersey and IR-Limited 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.
ARTICLE 2
QUORUM
IR-New Jersey agrees that, at any time IR-New Jersey owns any Class B
common shares of IR-Limited ("Shares") and such Shares have rights to vote at
any annual, special or other general meeting of IR-Limited members, and at any
adjournment or adjournments thereof, IR-New Jersey shall be present in person or
by proxy with respect to such Shares at such meeting for purposes of determining
whether a quorum is present at any such meeting.
ARTICLE 3
VOTING
IR-New Jersey agrees that, at any time IR-New Jersey owns any Shares
and such Shares have rights to vote at any annual, special or other general
meeting or pursuant to a written resolution of IR-Limited members, IR-New Jersey
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
IR-Limited Class A common shares (other than holders that are companies or
entities, including IR-New Jersey, controlled by IR-Limited) have voted for and
against and abstained from voting with respect to such proposal.
ARTICLE 4
SUBSIDIARIES
IR-Limited shall cause all the Subsidiaries (including IR-New Jersey)
that hold Shares to comply with the provisions of Articles 2, 3 and 5 of this
Agreement and, if necessary, shall cause any of the Subsidiaries to enter into a
voting agreement substantially similar to this Agreement.
ARTICLE 5
TRANSFER RESTRICTIONS
(a) IR-New Jersey hereby agrees that all transfers of Shares shall be
made in accordance with applicable rules of the New York Stock Exchange and/or
any exchange on which Shares are listed and in accordance with IR-Limited's
Bye-laws.
(b) IR-New Jersey agrees that any transfer of Shares by it to companies
or entities controlled by IR-Limited will be subject to this Agreement and such
transferee will agree in writing to be bound by the terms and provisions of this
Agreement in order for such transfer to be effective.
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ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 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 party.
6.2 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.
6.3 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 IR-Limited:
Xxxxxxxxx-Xxxx Company Limited
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Secretary
If to IR-New Jersey:
Xxxxxxxxx-Xxxx Company
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Vice President and Secretary
or to such other address as any party may have furnished to the other
in writing in accordance herewith.
6.4 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.
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6.5 COUNTERPARTS
This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed original but all of which shall
constitute one and the same instrument.
6.6 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.
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The parties have executed and delivered this Agreement as of the date
indicated in the first sentence of this Agreement.
XXXXXXXXX-XXXX COMPANY LIMITED
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: Secretary
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XXXXXXXXX-XXXX COMPANY
By: /s/ XXXXXXXX XXXXXXXXX
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Name: Xxxxxxxx Xxxxxxxxx
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Title: Senior Vice President
and General Counsel
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