EXIHIBT Q
AMENDED AND RESTATED VOTING AGREEMENT
This AMENDED AND RESTATED VOTING AGREEMENT (the "Agreement") is made
as of the date set forth below by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co., a
Delaware corporation (the "Company"), the individual named on the signature
page of this Agreement (the "Participant") and each other person signing a
voting agreement substantially similar to this Agreement (collectively, the
"Parties").
R E C I T A L S
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WHEREAS, certain awards (either outstanding or future) of shares of
the Company's common stock, par value $0.01 per share ("Company Stock"),
options to acquire shares of Company Stock or stock units payable in the form
of shares of Company Stock under certain plans and arrangements of the Company
are conditioned on Participants' agreeing to the terms of this Agreement;
WHEREAS, Participant, together with each other person subject to (i)
this Agreement, (ii) Article IV of the Stockholders' Agreement (as defined in
Section 2(a) hereof), or (iii) any agreement to which the Company and one or
more stockholders of the Company are parties containing provisions
substantially similar to those contained in Section 2 hereof, whether now in
existence or hereinafter entered into, may be deemed to constitute a "group"
(the "Section 13 Group") with respect to the beneficial ownership of the
Shares for purposes of Rule 13d-1 and Schedule 13D promulgated by the
Securities and Exchange Commission; and
WHEREAS, Participant is currently a party to one or more voting
agreements (the "Voting Agreements") with the Company substantially similar to
this Agreement and the Parties' desire to amend and restate such Voting
Agreements.
A G R E E M E N T
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The Parties agree to amend and restate the Voting Agreements as
follows:
1. Definitions. Capitalized terms used and not defined herein shall have the
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meanings specified (i) in the instrument documenting the award pursuant
to which the stock units, options to acquire shares of Company Stock or
Shares (as defined below) subject to the provisions of this Agreement
were granted, and (ii) in the Company plan or arrangement pursuant to
which such award was granted. For purposes of this Agreement only, the
following words and phrases shall have the following meanings, unless the
context otherwise requires:
(a) The term "employee" shall mean any person actively employed by the
Company or any Subsidiary thereof, or both, who receives regular and
stated compensation other than a pension, consulting fee, retainer
or disability payment (as payable under the Company's long-term
disability plan applicable to the Participant).
(b) The term "own," when used in reference to Shares of Stock (as
defined below), shall mean any Shares owned of record or
beneficially, but shall not include Shares underlying unexercised
options.
(c) The term "Shares" shall mean shares of Stock acquired pursuant to
any award under any plan or arrangement of the Company (or any
predecessor or successor to the Company by merger or otherwise) that
is conditioned upon the Participant's agreement to be bound by this
Agreement or an agreement substantially similar to this Agreement.
(d) The term "Stock" shall mean Company Stock or stock of any successor
to the Company by merger or otherwise.
2. Restrictions on Voting of Shares. As a condition to the effectiveness of
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any award granted concurrently or hereafter pursuant to any plan or
arrangement that is conditioned upon the Participant's agreement to be
bound by this Agreement, the Participant agrees to be bound by the
following provisions with respect to a Preliminary Vote (as defined
below) in respect of the Shares.
(a) Preliminary Vote. Before any vote of the stockholders of the Company
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at a meeting called with respect to any corporate action or before
action is taken by stockholders of the Company by written consent, a
vote (the "Preliminary Vote") shall be taken of those stockholders
of the Company who are subject (i) to this Agreement, (ii) to
Article IV of that certain stockholders' agreement (the
"Stockholders' Agreement"), dated February 14, 1986, as amended,
among the Company and the stockholders listed in Appendix A thereto
(as the same may be supplemented, amended and modified from time to
time), and (iii) to any other agreement to which the Company and one
or more stockholders of the Company are parties containing
provisions substantially similar to those contained in this Section
2, whether now in existence or hereafter entered into. Such
Preliminary Vote shall be taken in accordance with procedures
established from time to time by the Board or a committee designated
by the Board, upon all such matters upon which such stockholder vote
or other action is proposed to be taken. In connection with such
Preliminary Vote, the Participant shall be permitted to vote the
Shares then owned by the Participant in such manner as the
Participant may determine in the Participant's discretion.
(b) Voting by the Participant While an Employee. At any meeting of the
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stockholders of the Company called to vote with respect to any
corporate action or where action by stockholders of the Company is
taken by written consent, the shares of Stock of any Participant who
participated in the Preliminary Vote, if an employee at the time of
the Preliminary Vote, will be voted in accordance with the vote of
the majority of the shares of Stock voted in the Preliminary Vote,
and a Participant who was an employee of the Company at the time of
the Preliminary Vote but who did not participate in the Preliminary
Vote must, if such Participant desires to vote the Participant's
Shares that are subject to the Voting Agreements, vote such shares
in accordance with the vote of the majority of the Shares voted in
the Preliminary Vote.
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(c) Proxy Requirement. For purposes of effecting any vote described in
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Section 2(b) of this Agreement, the Participant shall be required to
grant to the Secretary of the Company, or any officer designated in
writing by the Secretary at least five (5) days prior to the meeting
of stockholders of the Company called to vote with respect to any
action or the taking of action by stockholders of the Company by
written consent, a proxy (i) to vote the Participant's Shares at
such meeting or to take such action by written consent with respect
to such Shares, in each case in accordance with Section 2(b) of this
Agreement, and (ii) to vote such Shares in such proxyholder's
discretion upon any other business which properly comes before such
meeting. The Participant shall agree that any such proxy so granted
shall not be revoked prior to any such meeting or the taking of any
such action by written consent.
(d) Lapse of Restrictions Upon Termination of Employment or Transfer of
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Shares. Any voting restrictions (including the right and obligation
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to vote in the Preliminary Vote) applicable to the Participant's
Shares shall continue in effect for so long as the Participant (i)
continues to be an employee and (ii) continues to own any Shares
subject to this Agreement. Shares that are no longer owned by the
Participant shall not be subject to this Agreement.
3. Filing of Joint Schedule 13D. The Participant agrees to be bound by the
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following provisions regarding a joint filing of a Schedule 13D.
(a) Joint Schedule 13D. In the event that the Participant is required to
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file a Schedule 13D with respect to the Shares owned beneficially by
him (as determined by Rule 13d-3 of the Securities Exchange Act of
1934), the Participant shall promptly file a single statement
together with other members of the Section 13 Group containing the
information required by Schedule 13D and such Schedule 13D shall be
filed on behalf of the Section 13 Group.
(b) Responsibilities of the Participant with Respect to the Schedule
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13D. The Participant shall cooperate fully with the other Parties to
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achieve the timely filing of any Schedule 13D that may be required
and any required amendments to any such Schedule, and the
Participant shall be responsible for the completeness and accuracy
of the information concerning the Participant contained therein, but
shall not be responsible for the completeness or accuracy of the
information concerning any other member of the Section 13 Group
contained therein, unless the Participant knows or has reason to
believe that such information is inaccurate.
(c) Notices and Communications. The Secretary, or any Assistant
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Secretary, shall be designated as the person authorized to receive
notices and communications with respect to the Schedule 13D and any
amendments thereto.
(d) Appointment of Attorney-in-Fact. The Participant hereby appoints the
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Secretary, or any Assistant Secretary, each acting singly, his
attorney-in-fact, with full power of substitution and
resubstitution, for Participant and in Participant's name, place and
stead, in any and all capacities, to sign any Schedule 13D required
to be filed on behalf
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of the Schedule 13 Group, and any and all amendments thereto, and any
other documents required to be filed in connection therewith with the
Securities and Exchange Commission.
(e) Duration of Agreement to File a Joint Schedule 13D. Any requirements
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applicable to Participant with respect to the filing of a Schedule
13D set forth herein shall continue in effect for so long as the
Participant is subject to the voting restrictions contained in this
Agreement.
4. Consent to Release of Principals and Certain Other Officers. The
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Participant hereby acknowledges that persons holding the title of
Principal (or its equivalent) with the Company or one of the Company's
Subsidiaries have been released, effective December 1, 1999, from voting
arrangements substantially similar to this Agreement and the Participant
hereby consents to such release and to the termination of such voting
arrangements.
5. Term. The undertakings and covenants of the undersigned set forth in this
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Agreement, including, without limitation, the covenants of the
undersigned with respect to the voting of Shares shall continue in full
force and effect through and including May 31, 2022, unless previously
renewed or extended, or until they have terminated or expired in
accordance with the terms hereof.
6. Governing Law. This Agreement shall be governed by the laws of the State
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of Delaware, excluding any conflicts or choice of law rule or principle
that might otherwise refer construction or interpretation of this
Agreement to the substantive law of another jurisdiction.
7. Successors and Assigns. This Agreement and all the terms and provisions
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hereof shall be binding upon and inure to the benefit of the Parties and
their respective successors and assigns, including any successor by
merger or otherwise.
8. Signature in Counterparts. This Agreement may be signed in counterparts,
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each of which shall be an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the Parties has duly executed this Agreement
as of this ____ day of __________, 1999.
By: ________________________________
Print Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & CO.
By:____________________________
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