EXHIBIT 4
AMENDED AND RESTATED
VOTING AGREEMENT
This Amended and Restated to Voting Agreement is made and entered into as of
March 31, 2004 by and between ▇▇▇▇▇▇ Industries, Ltd., a Bermuda corporation
("▇▇▇▇▇▇ Bermuda"), ▇▇▇▇▇▇ Industries, Inc., an Ohio corporation ("▇▇▇▇▇▇
Ohio"), and ▇▇▇▇▇▇ Bermuda Investments, Ltd., a Bermuda corporation ("CBI")
(▇▇▇▇▇▇ Ohio and CBI each an "Affiliated Shareholder") and amends the Voting
Agreement entered into as of May 21, 2002 by and between ▇▇▇▇▇▇ Bermuda and
▇▇▇▇▇▇ Ohio.
WHEREAS, ▇▇▇▇▇▇ Ohio and ▇▇▇▇▇▇ Bermuda entered into a series of transactions on
May 22, 2002 ("Reorganization"), whereby ▇▇▇▇▇▇ Ohio transferred certain assets
to ▇▇▇▇▇▇ Bermuda in exchange for shares of Class B common stock of ▇▇▇▇▇▇
Bermuda, and ▇▇▇▇▇▇ Ohio became a wholly-owned subsidiary of ▇▇▇▇▇▇ Bermuda; and
WHEREAS, ▇▇▇▇▇▇ Ohio entered into the Voting Agreement to ensure that the rights
of its shareholders, which became shareholders of ▇▇▇▇▇▇ Bermuda in the
Reorganization, would not be adversely effected through ▇▇▇▇▇▇ Ohio's ownership
of ▇▇▇▇▇▇ Bermuda stock; and
WHEREAS, it is in the interest of the parties hereto that CBI, a wholly-owned
indirect subsidiary of ▇▇▇▇▇▇ Ohio, may purchase Class A common shares of ▇▇▇▇▇▇
Bermuda stock on the open market in lieu of the purchase of such shares by
▇▇▇▇▇▇ Ohio or ▇▇▇▇▇▇ Bermuda; and
WHEREAS, the parties hereto desire to ensure that the rights of ▇▇▇▇▇▇ Bermuda
shareholders are not adversely affected by the purchase and ownership of ▇▇▇▇▇▇
Bermuda stock by CBI.
NOW THEREFORE, in consideration of the mutual agreements contained herein and
other good and adequate consideration, the parties agree as follows:
I. Representations
▇▇▇▇▇▇ Bermuda and each Affiliated Shareholder represents and warrants to the
others that:
a. it has the requisite power and authority to enter into and perform
this Agreement;
b. its 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.
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II. Quorum
Each Affiliated Shareholder agrees that, at any time it owns any ▇▇▇▇▇▇ Bermuda
capital stock and such stock has rights to vote at any annual, special or other
general meeting of ▇▇▇▇▇▇ 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.
III. Voting
Each Affiliated Shareholder agrees that, at any time it owns any ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ Bermuda
shareholders, it 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
▇▇▇▇▇▇ Bermuda have voted for and against and abstained from voting with respect
to such proposal. CBI hereby appoints ▇▇▇▇▇▇ Ohio as proxy, with full power of
substitution, to vote all shares of ▇▇▇▇▇▇ Bermuda capital stock owned by each
such company in the manner described in the preceding sentence.
IV. Transfer Restrictions
a. Each Affiliated Shareholder hereby agrees that all transfers of ▇▇▇▇▇▇
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 ▇▇▇▇▇▇ Bermuda is listed.
b. Each Affiliated Shareholder agrees that any transfer of ▇▇▇▇▇▇ Bermuda
stock by it to an affiliate of ▇▇▇▇▇▇ Bermuda 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 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. The parties hereto agree to cause their subsidiaries to agree in
writing to be bound by the terms of this Agreement prior to, or
immediately upon, the acquisition of shares of ▇▇▇▇▇▇ Bermuda stock by
such subsidiaries.
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.
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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 ▇▇▇▇▇▇ Bermuda, to:
▇▇▇▇▇▇ Industries, Ltd.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Office of the Corporate Secretary
If to ▇▇▇▇▇▇ Ohio, to:
▇▇▇▇▇▇ Industries, Inc.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
If to CBI, to:
▇▇▇▇▇▇ Bermuda Investments, Ltd.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Office of the Corporate Secretary
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.
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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.
▇▇▇▇▇▇ INDUSTRIES, LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior Vice President, General Counsel
and Chief Compliance Officer
▇▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇ BERMUDA INVESTMENTS, LTD.
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
E. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President
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