Exhibit 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement"), dated as of April 22, 2004,
is entered into between DESIGNER APPAREL HOLDING COMPANY ("Parent") and the
stockholders named on the signature pages hereto (each a "Stockholder" and
collectively, the "Stockholders"). Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Merger Agreement.
W I T N E S S E T H:
WHEREAS, Xxxxxxxx'x Holdings Inc., a Delaware corporation (the
"Company"), Parent and DAH Merger Corporation, a Delaware corporation and a
wholly owned subsidiary of Parent ("Sub"), have entered into an Agreement and
Plan of Merger, dated as of the date hereof (as the same may be amended or
supplemented, the "Merger Agreement"), pursuant to which Sub will be merged
with and into the Company upon the terms and subject to the conditions set
forth in the Merger Agreement with the Company continuing as the surviving
corporation and as a wholly owned subsidiary of Parent (the "Merger");
WHEREAS, each Stockholder is the sole beneficial owner (including
sole beneficial voting power) of the shares of Company Common Stock set forth
opposite such Stockholder's name on the applicable signature page hereto (such
Stockholder's "Existing Shares" and, together with any shares of Company
Common Stock or other voting capital stock of the Company acquired by such
Stockholder after the date hereof, such Stockholder's "Shares"); and
WHEREAS, concurrently with the execution and delivery of the Merger
Agreement and as a condition and inducement to Parent's willingness to enter
into the Merger Agreement, each Stockholder has agreed to vote all of its
Shares pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and in
consideration of the mutual covenants and agreements contained herein and in
the Merger Agreement and intending to be legally bound, the parties agree as
follows:
1. Voting of Shares. Until the termination of this Agreement in
accordance with the terms hereof, each Stockholder hereby agrees that, at any
annual, special or other meeting of the stockholders of the Company, and at
any adjournment or adjournments thereof, and in connection with any action of
the stockholders of the Company taken by written consent, such Stockholder
will:
(a) appear in person or by proxy at each such meeting or otherwise
cause the Shares beneficially owned by such Stockholder to be counted as
present at such meeting for purposes of calculating a quorum; and
(b) (i) unless Parent votes such Shares directly pursuant to the
proxy granted in Section 2 hereof, vote (or cause to be voted) such Shares, in
person or by proxy, or deliver a written consent with respect to such Shares,
in favor of adoption of the Merger Agreement, approval of the Merger and any
other action of the Company Stockholders requested in furtherance thereof;
(ii) unless Parent votes such Shares directly pursuant to the proxy granted in
Section 2 hereof, vote (or cause to be voted) such Shares, in person or by
proxy, against, and not deliver any written consent with respect to such
Shares in favor of (x) any action or agreement submitted for approval of the
Company Stockholders that would reasonably be expected to result in a breach
of any covenant, representation or warranty or any other obligation or
agreement of the Company contained in the Merger Agreement or of such
Stockholder contained in this Agreement; and (y) any Acquisition Proposal or
any other action, agreement or transaction submitted for approval to the
Company Stockholders that is intended, or could reasonably be expected, to
impede, interfere or be inconsistent with, delay, postpone, discourage or
adversely affect the Merger or this Agreement, including: (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or its Subsidiaries (other than the
Merger); (B) a sale, lease or transfer of a material amount of assets of the
Company or any of its Subsidiaries or a reorganization, recapitalization or
liquidation of the Company or any of its Subsidiaries; (C) a material change
in the policies or management of the Company; (D) an election of new members
to the board of directors of the Company, except where the vote is cast in
favor of the nominees of a majority of the existing directors; (E) any
material change in the present capitalization or dividend policy of the
Company or any amendment or other change to the Company Certificate of
Incorporation or Company Bylaws; or (F) any other material change in the
Company's corporate structure or business, unless, with respect to any of (A)
through (F) above, Parent shall instruct such Stockholder in writing to vote
in favor of, or deliver a consent with respect to, such actions.
2. Proxy.
2.1 Each Stockholder by this Agreement does hereby constitute and
appoint Parent, or any nominee of Parent, with full power of substitution,
during and for the Proxy Term (as hereinafter defined), as such Stockholder's
true and lawful attorney and irrevocable proxy, for and in such Stockholder's
name, place and stead, to vote each of such Shares as such Stockholder's
proxy, at every meeting of the Company Stockholders or any adjournment thereof
or in connection with any written consent of the Company Stockholders, or, as
applicable, to instruct and direct DTC, Bear Xxxxxxx, Credit Suisse First
Boston or any other holder of record of the Shares to vote its Shares or
execute its proxy with respect to such Shares at every meeting of the Company
Stockholders or any adjournment thereof or in connection with any written
consent of the Company Stockholders, (i) in favor of adoption of the Merger
Agreement, approval of the Merger and any other action of the Company
Stockholders requested in furtherance thereof; (ii) against any action or
agreement submitted for approval of the Company Stockholders that would
reasonably be expected to result in a breach of any covenant, representation
or warranty or any other obligation or agreement of the Company contained in
the Merger Agreement or of such Stockholder contained in this Agreement; and
(iii) against any Acquisition Proposal or any other action, agreement or
transaction submitted for approval to the Company Stockholders that is
intended, or could reasonably be expected, to impede, interfere or be
inconsistent with, delay, postpone, discourage or adversely affect the Merger
or this Agreement, including: (A) any extraordinary corporate transaction,
such as a merger, consolidation or other business combination involving the
Company or its Subsidiaries (other than the Merger); (B) a sale, lease or
transfer of a material amount of assets of the Company or any of its
Subsidiaries or a reorganization, recapitalization or liquidation of the
Company or any of its Subsidiaries; (C) a material change in the policies or
management of the Company; (D) an election of new members to the board of
directors of the Company, except where the vote is cast in favor of the
nominees of a majority of the existing directors; (E) any material change in
the present capitalization or dividend policy of the Company or any amendment
or other change to the Company Certificate of Incorporation or Company Bylaws;
or (F) any other material change in the Company's corporate structure or
business, unless, with respect to any of (A) through (F) above, Parent shall
determine to vote or consent in favor of such actions. Each Stockholder
intends this proxy to be irrevocable and coupled with an interest during the
Proxy Term and hereby revokes any proxy previously granted by such Stockholder
with respect to such Stockholder's Shares.
2.2 For purposes of this Agreement, "Proxy Term" shall mean the
period from the execution of this Agreement until the earlier of (i) the date
on which the Merger Agreement is terminated in accordance with its terms or
(ii) the Effective Time.
3. Acknowledgment of Reliance. Each Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance
upon such Stockholder's execution and delivery of this Agreement.
4. No Inconsistent Agreements. Each Stockholder hereby covenants and
agrees that, except for this Agreement, such Stockholder (a) has not entered,
and such Stockholder shall not enter at any time while this Agreement remains
in effect, into any voting agreement or voting trust with respect to the
Shares beneficially owned by such Stockholder and (b) has not granted, and
such Stockholder shall not grant at any time while this Agreement remains in
effect, a proxy, a consent or power of attorney with respect to the Shares
beneficially owned by such Stockholder, other than the proxy granted pursuant
to Section 2 hereof.
5. Representations and Warranties of the Stockholders. Each
Stockholder hereby represents and warrants to Parent as follows:
5.1 Authorization; Validity of Agreement; Necessary Action.
Stockholder has full power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
Stockholder of this Agreement and the consummation by it of the transactions
contemplated hereby have been duly and validly authorized by Stockholder, and
no other actions or proceedings on the part of Stockholder are necessary to
authorize the execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by Stockholder and, assuming this Agreement
constitutes a valid and binding obligation of Parent, constitutes a valid and
binding obligation of Stockholder, enforceable against it in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors'
rights generally and to general equity principles.
5.2 Ownership. The Existing Shares are, and such Existing Shares and
any additional Shares will be, beneficially owned by Stockholder. As of the
date hereof, the number of shares of Company Common Stock owned by Stockholder
is listed opposite Stockholder's name on the signature page hereto. As of the
date hereof, the Existing Shares constitute all of the shares of Company
Common Stock owned by or for which voting power or disposition power is held
or shared by Stockholder or any of its affiliates (except for shares owned
beneficially and of record by any affiliates of Stockholder that are parties
to a Voting and Support Agreement with Parent in the form of this Agreement).
For purposes of this Agreement, (i) "affiliates" shall mean persons controlled
by, under the control of or under common control with Stockholder and, (ii)
"control" of a person or entity shall mean the possession, directly or
indirectly, of the power to direct the management and policies of such person
or entity, whether through the ownership of voting securities, contract or
otherwise. Stockholder has and will have at all times through the Effective
Time sole voting power, sole power of disposition, sole power to issue
instructions with respect to the matters set forth in Sections 1, 2, 4 and 6
hereof, and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Shares and with
respect to all of the Shares at the Effective Time, with no limitations,
qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement. Stockholder has good and
marketable title to the Existing Shares, free and clear of any security
interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on voting rights, charges and encumbrances of any
nature whatsoever ("Liens"), and Stockholder will have good and marketable
title to such Existing Shares and any additional Shares, free and clear of any
Liens.
5.3 No Violation. The execution and delivery of this Agreement by
Stockholder does not, and the performance by Stockholder of its obligations
under this Agreement will not, (i) conflict with or violate any law, ordinance
or regulation of any Governmental Entity applicable to Stockholder or by which
any of its assets or properties is bound or (ii) conflict with, result in any
breach of or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or require payment
under, or require redemption or repurchase of or otherwise require the
purchase or sale of any securities, or result in the creation of any Lien on
the properties or assets of Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Stockholder is a party or by which
Stockholder or any of its assets or properties is bound, except for any of the
foregoing as would not, either individually or in the aggregate, prevent or
materially delay or impair the ability of Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on
a timely basis.
5.4 Consents and Approvals. The execution and delivery of this
Agreement by Stockholder does not, and the performance by Stockholder of its
obligations under this Agreement will not, require Stockholder to obtain any
consent, approval, authorization or permit of, or to make any filing with or
notification to, any Governmental Entity based on the law, ordinance or
regulation of any applicable Governmental Entity, except for the filing of an
amendment to Stockholder's Schedule 13D and for any of the foregoing as would
not reasonably be expected, either individually or in the aggregate, prevent
or materially delay or impair the ability of Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on
a timely basis.
5.5 Absence of Litigation. As of the date hereof, there is no suit,
action, investigation or proceeding pending or, to the knowledge of
Stockholder, threatened against Stockholder before or by any Governmental
Entity that could impair the ability of Stockholder to perform its obligations
hereunder or to consummate the transactions contemplated hereby on a timely
basis.
5.6 Absence of Agreements with the Company. There are no existing
Agreements or arrangements between Stockholder or any of its affiliates, on
one hand, or the Company or any of its Subsidiaries, on the other hand,
relating to the Shares beneficially owned by Stockholder or any other
securities of or investment in the Company.
6. Covenants of the Stockholders. Each Stockholder hereby covenants
and agrees as follows:
6.1 While this Agreement is in effect, and except as expressly
contemplated hereby, not to sell, transfer, pledge, encumber, assign,
distribute, gift or otherwise dispose of (collectively, a "Transfer") or
enforce or permit the execution of the provisions of any redemption, share
purchase or sale, recapitalization or other agreement with the Company or any
other person or entity or enter into any contract, option or other arrangement
or understanding with respect to any Transfer (whether by actual disposition
or effective economic disposition due to hedging, cash settlement or
otherwise) of, any of the Existing Shares beneficially owned by Stockholder,
any Shares acquired by Stockholder after the date hereof, any securities
exercisable or exchangeable for or convertible into Company Common Stock, any
other capital stock of the Company or any interest in any of the foregoing
with any person or entity.
6.2 In case of a stock dividend or distribution, or any change in
Company Common Stock by reason of any stock dividend or distribution,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall be deemed to refer to and include the Shares as well as
all such stock dividends and distributions and any securities into which or
for which any or all of the Shares may be changed or exchanged or which are
received in such transaction.
6.3 During the term of this Agreement it shall not, and shall not
authorize any of its representatives to, and shall not permit any of its
representatives to, directly or indirectly, (a) solicit, initiate or
encourage, or take any other action to facilitate, the submission of any
Acquisition Proposal or any proposal with respect to any matter described in
Section 6.1 hereof or (b) participate in or encourage any discussion or
negotiations regarding, or furnish to any person or entity any non-public
information with respect to, or take any other action to facilitate any
inquiries or the making of, any proposal that constitutes, or may reasonably
be expected to lead to, any Acquisition Proposal; provided, however, that
beginning on the date as of which the Company has delivered to Parent written
notice as described in Section 5.5(c)(ii)(B) of the Merger Agreement (the
"Superior Proposal Notice") and ending when the Company no longer has the
right to terminate the Merger Agreement pursuant to Section 7.1(d)(ii) of the
Merger Agreement, upon prior written notice to Parent, Stockholder may furnish
information and enter into discussions with the person making the Superior
Proposal (as defined in the Merger Agreement) giving rise to the delivery of
the Superior Proposal Notice. Stockholder agrees immediately to cease and
cause to be terminated any existing activities, discussions or negotiations
with any parties conducted heretofore with respect to any possible Acquisition
Proposal or any matter described in Section 6.1, and Stockholder will take all
necessary steps to inform its respective representatives of the obligations
undertaken by Stockholder pursuant to this Section 6.3.
6.4 While this Agreement is in effect, it shall notify Parent
promptly (and in any event within one business day) in writing of (i) the
number of any additional Shares acquired by Stockholder, if any, after the
date hereof and (ii) any such inquiries or proposals that are received by, any
such information which is requested from, or any such negotiations or
discussions that are sought to be initiated or continued with, Stockholder
with respect to any matter described in Section 6.1 or 6.3.
6.5 Stockholder will not take any action which would have the effect
of preventing or disabling Stockholder from performing its obligations under
this Agreement.
7. Miscellaneous.
7.1 Termination. Sections 1, 2, 4 and 6 of this Agreement, and any
proxy granted pursuant to Section 2, shall terminate upon the earlier of (i)
the date on which the Merger Agreement is terminated in accordance with its
terms or (ii) the Effective Time. Nothing in this Section 7 shall relieve or
otherwise limit any party of liability for breach of this Agreement.
7.2 Stop Transfer Order. In furtherance of this Agreement, each
Stockholder shall and hereby does authorize and instruct the Company to
instruct its transfer agent to enter a stop transfer order with respect to all
of the Existing Shares beneficially owned by such Stockholder and all Shares
acquired by such Stockholder after the date hereof.
7.3 Further Assurances. From time to time, at the other party's
request and without further consideration, each party shall execute and
deliver such additional documents and take all such further action as may be
reasonably necessary or desirable to consummate the transactions contemplated
by this Agreement and the Merger Agreement.
7.4 No Ownership Interest. Nothing contained in this Agreement shall
be deemed to vest in Parent any direct or indirect ownership or incidence of
ownership of or with respect to any Stockholder's Shares. All rights,
ownership and economic benefits of and relating to each Stockholder's Shares
shall remain vested in and belong to such Stockholder, and Parent shall have
no authority to manage, direct, superintend, restrict, regulate, govern or
administer any of the policies or operations of the Company or exercise any
power or authority to direct such Stockholder in the voting of any of its
Shares, except as otherwise provided herein.
7.5 Expenses. All costs and expenses (including legal fees) incurred
in connection with this Agreement shall be paid by the party incurring such
expenses.
7.6 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (with
confirmation) or delivered by an overnight courier (with confirmation) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Parent to:
Designer Apparel Holding Company
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxxx, Inc.
Attn.: Xxxxx X. Xxxxxxxx
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
King & Spalding LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facscimile: (000) 000-0000
(b) if to a Stockholder, to the address listed next to such
Stockholder's name on the applicable signature page hereto.
7.7 Interpretation. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement,
and Section references are to this Agreement unless otherwise specified.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. No provision of this Agreement shall be construed to require
Parent, any Stockholder or any of their respective Subsidiaries or affiliates
to take any action which would violate any applicable Law. Capitalized terms
used but not defined herein shall have the meanings given to such terms in the
Merger Agreement.
7.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.9 Entire Agreement. This Agreement (together with the Merger
Agreement, to the extent referred to herein) constitutes the entire agreement
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
7.10 Governing Law; Jurisdiction. All disputes, claims or
controversies arising out of or relating to this Agreement, or the
negotiation, validity or performance of this Agreement, or the transactions
contemplated by this Agreement shall be governed by and construed in
accordance with the Laws of the State of Delaware without regard to its rules
of conflict of laws. Parent and each Stockholder hereby irrevocably and
unconditionally consents to submit to the sole and exclusive jurisdiction of
the courts of the State of Delaware for any litigation arising out of or
relating to this Agreement, or the negotiation, validity or performance of
this Agreement, or the transactions contemplated by this Agreement (and agrees
not to commence any litigation relating thereto except in such courts), waives
any objection to the laying of venue of any such litigation in the courts of
the State of Delaware and agrees not to plead or claim in any court of the
State of Delaware that such litigation brought therein has been brought in any
inconvenient forum. Each of the parties hereto hereby irrevocably waives the
right to a trial by jury.
7.11 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
7.12 Specific Performance. Each of the parties acknowledges and
agrees that the other party would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the parties
agrees that the other party shall be entitled to seek an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in any
action instituted in any court of the United States or any state thereof
having jurisdiction over the parties and the matter, in addition to any other
remedy to which it may be entitled, at or in equity.
7.13 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid
or unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision,
and this Agreement shall be enforceable as so modified after the expiration of
the time within which the judgment may be appealed.
7.14 Assignment; Third Party Beneficiaries. Neither this Agreement
nor any of the rights, interests or obligations of any party hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party. Subject to
the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors
and permitted assigns. This Agreement is not intended to confer upon any
person or entity other than the parties hereto any rights or remedies
hereunder.
[SIGNATURE PAGE TO VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties have signed or have caused this
Agreement to be signed by their respective officers or other authorized
persons thereunto duly authorized as of the date first above written.
DESIGNER APPAREL HOLDING COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
VOTING AGREEMENT
Counterpart Signature Page
IN WITNESS WHEREOF, the undersigned Stockholder has signed or has
caused this Agreement to be signed by its respective officers or other
authorized persons thereunto duly authorized as of the date first written
above.
Number of Shares ALPINE ASSOCIATES, L.P.
beneficially owned:
1,845,100 By: Xxxxxx Corporation
Its: General Partner
By: /s/ Xxxx Xxxxx
--------------------
Name: Xxxx Xxxxx
Title: Vice President
Address for notices: Alpine Associates, L.P.
Attn: Xxxx Xxxxx
000 Xxxxx Xxx.
Xxxxxxxxx, Xxx Xxxxxx 00000
VOTING AGREEMENT
Counterpart Signature Page
IN WITNESS WHEREOF, the undersigned Stockholder has signed or has
caused this Agreement to be signed by its respective officers or other
authorized persons thereunto duly authorized as of the date first written
above.
Number of Shares ALPINE PARTNERS, L.P.
beneficially owned:
246,080 By: Xxxxxx Corporation
Its: General Partner
By: /s/ Xxxx Xxxxx
------------------
Name: Xxxx Xxxxx
Title: Vice President
Address for notices: Alpine Partners, L.P.
Attn: Xxxx Xxxxx
000 Xxxxx Xxx.
Xxxxxxxxx, Xxx Xxxxxx 00000
VOTING AGREEMENT
Counterpart Signature Page
IN WITNESS WHEREOF, the undersigned Stockholder has signed or has
caused this Agreement to be signed by its respective officers or other
authorized persons thereunto duly authorized as of the date first written
above.
Number of Shares ALPINE ASSOCIATES OFFSHORE FUND
beneficially owned: LTD.
20,390
By: /s/ Xxxx Xxxxx
-----------------------
Name: Xxxx Xxxxx
Title: Vice President
Address for notices: Alpine Associates Offshore Fund
Ltd.
Attn: Xxxx Xxxxx
000 Xxxxx Xxx.
Xxxxxxxxx, Xxx Xxxxxx 00000
VOTING AGREEMENT
Counterpart Signature Page
IN WITNESS WHEREOF, the undersigned Stockholder has signed or has
caused this Agreement to be signed by its respective officers or other
authorized persons thereunto duly authorized as of the date first written
above.
Number of Shares PALISADES PARTNERS, L.P.
beneficially owned:
88,548 By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
Address for notices: Palisades Partners, L.P.
Attn: Xxxx Xxxxx
000 Xxxxx Xxx.
Xxxxxxxxx, Xxx Xxxxxx 00000
