Exhibit 10.4
INVESTMENT VOTING
AGREEMENT
INVESTMENT VOTING AGREEMENT, dated
as of March 13, 2009 (this “ Agreement ”),
between Dov Charney, an individual (“ Mr. Charney
”), and Lion Capital (Guernsey) II Limited, a Guernsey
limited company (“ Investor ”).
WHEREAS, Investor is a party to that
certain Investment Agreement, dated as of March 13, 2009 (as
it may be hereafter amended, supplemented or modified from time to
time, the “ Investment Agreement ”; capitalized
terms used but not defined herein have the respective meanings set
forth in the Investment Agreement), between American Apparel, Inc.,
a Delaware corporation (the “ Company ”), and
Investor, pursuant to which and subject to the terms and conditions
of which, among other things, Investor has the right to designate
up to two persons for nomination for election to the Board of
Directors of the Company (the “ Board
”);
WHEREAS, Mr. Charney is a party
to that certain Voting Agreement, dated as of December 12,
2007 (as it may be hereafter amended, supplemented or modified from
time to time, the “ Voting Agreement ”), among
the Company, Mr. Charney and the other stockholders of the
Company listed on the signature pages thereto, pursuant to which
and subject to the terms and conditions of which, among other
things, Mr. Charney has the right to designate up to four
persons for nomination for election to the Board; and
WHEREAS, in connection with the
transactions contemplated by the Investment Agreement, and pursuant
to Sections 1.2(b)(1)(H) and 4.1(a) of the Investment Agreement,
Mr. Charney and Investor desire to enter into this
Agreement.
NOW, THEREFORE, in consideration of
the premises and of the mutual agreements and covenants set forth
herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
VOTING AGREEMENTS
Section 1.1
Mr. Charney’s Agreement to Vote for Investor
Directors . For so long as Investor has the right to designate
any person or persons for nomination for election to the Board
pursuant to Section 4.1(a) of the Investment Agreement,
subject to applicable law and Section 1.3
hereof:
(a) Mr. Charney agrees to vote
or execute consents, as applicable, with respect to all of the
shares of Common Stock that he at such time beneficially owns (such
term as used herein to be defined as set forth in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended), or cause to be
voted or a consent to be executed with respect to such shares of
Common Stock he at such time beneficially owns, for the election
and re-election of each such nominated Investor Director to the
Board;
(b) during the term of the Voting
Agreement, if necessary to permit an Investor Director nominated by
Investor for election or re-election to the Board pursuant to
Section 4.1(a) of the Investment Agreement, Mr. Charney
agrees to designate each such Investor Director as an AAI Director
(as defined in the Voting Agreement) that is a Class A
Director (as defined in the Voting Agreement), a Class B Director
(as defined in the Voting Agreement) or a Class C Director (as
defined in the Voting Agreement), the selection of such class to be
at Mr. Charney’s election, pursuant to
Section 1.01(a) of the Voting Agreement;
(c) in the event that a vacancy is
created at any time by the death, disability, retirement,
resignation or removal (with or without cause) of any such Investor
Director, Investor shall have the right to designate a replacement
to fill such vacancy, and Mr. Charney agrees to vote or
execute consents, as applicable, with respect to all of the shares
of Common Stock that he at such time beneficially owns, or cause to
be voted or a consent to be executed with respect to such shares of
Common Stock he at such time beneficially owns, for election to the
Board of such individual designated by Investor;
(d) Mr. Charney agrees that he
will not, as a stockholder, vote or execute any consent with
respect to the removal of an Investor Director, unless he is
directed to do so by Investor, and if he is so directed, he agrees
to vote or execute consents, as applicable, with respect to all of
the shares of Common Stock that he at such time beneficially owns,
or cause to be voted or a consent to be executed with respect to
such shares of Common Stock he at such time beneficially owns, for
such removal and for the election of a replacement Investor
Director as provided in Section 1.1(c) ; and
(e) notwithstanding anything to the
contrary set forth herein, Mr. Charney’s obligations
under this Section 1.1 shall terminate, and
Mr. Charney shall not have any voting or other obligations
under this Agreement, in the event that Mr. Charney
beneficially owns less than 6,000,000 shares of Common Stock (which
number shall be deemed to be adjusted appropriately to take into
account any stock split, reverse stock split or similar
transaction).
Section 1.2 Investor’s
Agreement to Vote for Mr. Charney . For so long as
Investor has the right to designate any person for nomination for
election to the Board pursuant to Section 4.1(a) of the
Investment Agreement, subject to applicable law and Sections
1.1 and 1.3 hereof:
(a) at each time that
Mr. Charney and, during the term of the Voting Agreement,
another AAI Director is nominated for re-election or election, as
the case may be, to the Board, Investor agrees to vote or execute
consents, as applicable, with respect to all of the shares of
Common Stock that it at such time beneficially owns (such
beneficial ownership, when determined with respect to Investor, to
include any shares obtained upon exercise of the Warrant), or cause
to be voted or a consent to be executed with respect to such shares
of Common Stock Investor at such time beneficially owns, for such
re-election or election, as the case may be, of Mr. Charney
and, during the term of the Voting Agreement, such other AAI
Director, as the case may be, to the Board;
(b) in the event that a vacancy is
created at any time by the death, disability, retirement,
resignation or removal (with or without cause) of any AAI Director
during the term of the Voting Agreement, Mr. Charney shall
have the right to designate a replacement to
2
fill such vacancy, and Investor agrees to vote
or execute consents, as applicable, with respect to all of the
shares of Common Stock that Investor at such time beneficially
owns, or cause to be voted or a consent to be executed with respect
to such shares of Common Stock Investor at such time beneficially
owns, for election to the Board of such individual designated by
Mr. Charney;
(c) Investor agrees that it will
not, as a stockholder, vote or execute any consent with respect to
the removal of Mr. Charney or, during the term of the Voting
Agreement, another AAI Director, unless it is directed to do so by
Mr. Charney, and if Investor is so directed, Investor agrees
to vote or execute consents, as applicable, with respect to all of
the shares of Common Stock that Investor at such time beneficially
owns, or cause to be voted or a consent to be executed with respect
to such shares of Common Stock Investor at such time beneficially
owns, for such removal and for the election of a replacement
individual as provided in Section&
