Exhibit 10.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of this
day of
,
200 (“Agreement”), among each of the
persons listed under the caption “AAI” on Exhibit
A attached hereto (the “AII Group”), each of the
persons listed under the caption “Founders Group” on
Exhibit A attached hereto (the “Founders
Group”), and Endeavor Acquisition Corp., a Delaware
corporation (“Endeavor”). Each of the AAI Group and the
Founders Group is sometimes referred to herein as a
“Group”. For purposes of this Agreement, each person
who is a member of either the AAI Group or the Founders Group is
referred to herein individually as a “Stockholder” and
collectively as the “Stockholders.”
WHEREAS, as of December 18,
2006, each of:
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AAI Acquisition
Corp., a California corporation and a wholly-owned subsidiary of
Endeavor Parent (“Merger Sub”);
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American
Apparel Inc., a California corporation
(“AAI”);
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All of the
Canadian corporations affiliated with AAI (collectively
“CI”);
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American
Apparel, LLC, a California limited liability company
(“LLC” and, collectively with AAI and CI, the
“Targets”);
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Dov Charney, an
owner of 50% of the outstanding capital stock of AAI and 50% of the
outstanding membership interests of LLC and a member of the AAI
Group (the “Stockholder”);
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Sang Ho Lim,
the owner of the remaining 50% of the outstanding capital stock of
AAI and the remaining 50% of the outstanding membership interests
of LLC (“Lim”); and
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Each of the
stockholders of CI (each of whom is a member of the AAI
Group),
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entered into an Agreement and Plan
of Reorganization (the “Reorganization Agreement”) that
provides, inter alia , upon the terms and subject to the
conditions thereof, for the concurrent merger of AAI with and into
Merger Sub and acquisition of all of the outstanding capital stock
of the CI companies by Parent, and the exchange of all of the
outstanding capital stock of each of the Targets for shares of the
common stock of Endeavor and/or cash (collectively, the
“Transactions”).
WHEREAS, as of the date hereof, each
Stockholder who is a member of the Founders Group owns beneficially
and of record shares of common stock of Endeavor, par value $0.0001
per share (“Endeavor Common Stock”), as set forth
opposite such stockholder’s name on Exhibit A
hereto (all such shares and any shares of which ownership of record
or the power to
vote with respect to the Endeavor Common Stock
is hereafter acquired by any of the Stockholders, whether by
purchase, conversion or exercise, prior to the termination of this
Agreement being referred to herein as the
“Shares”);
WHEREAS, at the Effective Time, all
common shares of each of the Targets (“Company Common
Stock”) beneficially owned by each Stockholder who is a
member of the AAI Group shall be converted into the right to
receive and shall be exchanged for his, her or its pro rata portion
of the shares of Endeavor Common Stock to be issued to the
Company’s security holders as consideration in the
Transactions;
WHEREAS, as a condition to the
consummation of the Merger Agreement, the Stockholders have agreed,
severally, to enter into this Agreement; and
WHEREAS, capitalized terms used but
not defined in this Agreement shall have the meanings ascribed to
them in the Merger Agreement.
NOW, THEREFORE, in consideration of
the premises and of the mutual agreements and covenants set forth
herein and in the Merger Agreement, and intending to be legally
bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING OF SHARES FOR
DIRECTORS
SECTION 1.01 Vote in Favor of the
Directors . During the term of this Agreement, each Stockholder
agrees to vote the shares of Endeavor Common Stock he, she or it
now owns, or will hereafter acquire prior to the termination of
this Agreement, for the election and re-election of the following
persons as directors of Endeavor (“Director
Designees”):
(a) Four (4) persons, each of
whom shall be designees of the AAI Group; with one (1) of such
designees to stand for election in 2008 (“Class A
Director”), who shall initially be
; two (2) of such designees to stand for election in 2009
(“Class B Director”), who shall initially be
; and one (1) of such designees to stand for election in 2010
(“Class C Directors”), who shall initially be
and
(collectively, the “AAI Directors”), with two of such
designees qualifying as “independent” directors within
the meaning of the American Stock Exchange rules;
(b) Four (4) persons, each of
whom shall be designees of the Founders Group; with one (1) of
such designees being a Class A Director, who shall initially
be
; one (1) of such designees being a Class B Director, who
shall initially be
; and two (2) of such designees being Class C Directors, who
shall initially be
and
(collectively, the “Endeavor Directors”), with two of
such designees qualifying as “independent” directors
within the meaning of the American Stock Exchange rules;
(c) One (1) person, who shall
be mutually designated by the AAI Group and Founders Group, who
shall, at all times, be an “independent director”
within the meaning of the American Stock Exchange Rules, with such
designee being a Class A Director. The initial mutual designee
shall be Keith Miller.
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Neither the Stockholders, nor any of
the officers, directors, stockholders, members, managers, partners,
employees or agents of any Stockholder, makes any representation or
warranty as to the fitness or competence of any Director Designee
to serve on the Board of Directors by virtue of such party’s
execution of this Agreement or by the act of such party in
designating or voting for such Director Designee pursuant to this
Agreement.
Any Director Designee may be removed
from the Board of Directors in the manner allowed by law and
Endeavor’s governing documents except that, subject to
Section 1.04, below, each Stockholder agrees that he, she or
it will not, as a stockholder, vote for the removal of any director
who is a member of the Group of which such Stockholder is not a
member. If a director is removed or resigns from office, the
remaining directors of the Group of which the vacating director is
a member shall be entitled to appoint the successor.
All committees of the Board shall be
formed in accordance with, and its members