Exhibit 10.8
VOTING AGREEMENT
THIS VOTING AGREEMENT (this
“AGREEMENT”), dated as of April 12, 2007 (the
“ Effective Date ”), by and among New Wave Group
AB (Publ) (“ Parent ”) and Julie E. Snow, a
United States citizen (“ Stockholder ”) and a
stockholder of Cutter & Buck Inc., a Washington corporation
(the “ Company ”). All references to the
“date hereof” shall mean the Effective Date. Other
capitalized terms used but not defined in this Agreement have the
meanings ascribed thereto in the Merger Agreement.
RECITALS:
WHEREAS, the Company, Parent and
Newport Acquisition Corporation, a Washington corporation and a
wholly owned subsidiary of Parent (“ Merger Sub
”), are entering into an Agreement and Plan of Merger (as
amended from time to time, the “ Merger Agreement
”), dated as of the Effective Date, providing for, among
other things, the merger of Merger Sub with and into the Company,
with the Company continuing as the surviving corporation and wholly
owned subsidiary of Parent (the “ Merger
”);
WHEREAS, as of the date hereof,
Stockholder is the Beneficial Owner (as defined below) of, and has
the sole right to vote and dispose of, that number of shares of
common stock (the “ Company Shares ”) of the
Company set forth beside Stockholder’s name on Schedule
A hereto; and
WHEREAS, concurrently with the
effectiveness of the Merger Agreement, and as a condition and
inducement to the willingness of Parent and Merger Sub to enter
into the Merger Agreement and incur the obligations set forth
therein, Parent has required that Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not
defined in this Agreement are used in this Agreement with the
meanings given to such terms in the Merger Agreement. In addition,
for purposes of this Agreement:
“ Affiliate ”
means, with respect to any specified Person, any Person that
directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the
Person specified. For purposes of this Agreement, with respect to
Stockholder, “ Affiliate ” shall not include the
Company and the Persons that directly, or indirectly through one or
more intermediaries, are controlled by the Company. For the
avoidance of doubt, no officer or director of the Company shall be
deemed an Affiliate of another officer or director of the Company
by virtue of his or her status as an officer or director of the
Company.
“ Alternative
Transaction ” means (i) any transaction of the type
described in the definition of Acquisition Proposal contained in
the Merger Agreement other than the transactions contemplated by
the Merger Agreement and (ii) any other action, agreement or
transaction that would reasonably be expected to hinder, delay,
impede, interfere, postpone, discourage, adversely affect or
frustrate the consummation of the transaction contemplated by the
Merger Agreement.
“ Beneficially Owned
” or “ Beneficial Ownership ” with respect
to any securities means having beneficial ownership of such
securities (as determined pursuant to Rule 13d-3 under the Exchange
Act, disregarding the phrase “within 60 days” in
paragraph (d) (1) (i) thereof), including pursuant to any
agreement, arrangement or understanding, whether or not in writing.
without duplicative counting of the same securities, securities
Beneficially Owned by a Person shall include securities
Beneficially Owned by (i) all controlled Affiliates of such Person,
and (ii) all other Persons with whom such Person would constitute a
“group” within the meaning of Section 13(d) of the
Exchange Act and the rules promulgated thereunder.
“ Beneficial Owner
” with respect to any securities means a Person that has
Beneficial Ownership of such securities.
“ Person ” means
an individual, corporation, limited liability company, partnership,
association, trust or any other entity or organization, including
any Governmental Entity.
“ Subject Shares
” means, with respect to Stockholder, without duplication,
(i) the Company Shares owned by Stockholder on the date hereof as
described on Schedule A , and (ii) any additional Company
Shares acquired by Stockholder or over which the Stockholder
acquires Beneficial Ownership from and after the date hereof,
whether pursuant to existing stock option agreements or
otherwise.
“ Transfer ”
means, with respect to a security, the sale, transfer, pledge,
hypothecation, encumbrance, assignment or disposition of such
security or the Beneficial Ownership thereof, the offer to make
such sale, transfer or other disposition, and each option,
agreement, arrangement or understanding, whether or not in writing,
to effect any of the foregoing. As a verb, “Transfer”
shall have a correlative meaning.
ARTICLE II
COVENANTS OF SHAREHOLDER
Section 2.1
Irrevocable Proxy . Concurrently with the execution of this
Agreement, Stockholder agrees to deliver to Parent a proxy in the
form attached hereto as Exhibit A (the “ Proxy
”), which shall be irrevocable to the extent provided in
Chapter 23B.07.220 of the Washington Business Corporation Act (the
“ WBCA ”), with respect to the Subject Shares
referred to therein.
Section
2.2
Agreement to Vote .
(a)
At any meeting of the stockholders of the Company held prior to the
Expiration Date (as defined in Section 5.13), however called, and
at every adjournment or
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postponement thereof prior to the
Expiration Date, or in connection with any written consent of, or
any other action by, the stockholders of the Company given or
solicited prior to the Expiration Date, Stockholder shall vote, or
provide a consent with respect to, all of the Subject Shares
entitled to vote or to consent thereon (i) in favor of adoption and
approval of the Merger Agreement and the transactions contemplated
thereby, and any actions required in furtherance thereof and (ii)
against any Alternative Transaction and against any other action or
agreement that would result in a breach in any material respect of
any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or that is
intended to impede, interfere with, delay, postpone or attempt to
discourage the consummation of the transactions contemplated by the
Merger Agreement, including without limitation the
Merger.
(b)
Stockholder shall not enter into any agreement with any Person
(other than Parent) prior to the Expiration Date (with respect to
periods prior to or after the Expiration Date) directly or
indirectly to vote, grant any proxy or give instructions with
respect to the voting of, the Subject Shares in respect of the
matters described in Section 2.2 hereof.
Section
2.3
Revocation of Proxies; Cooperation . Stockholder agrees as
follows:
(a)
Stockholder hereby represents and warrants that any proxies
heretofore given in respect of the Subject Shares with respect to
the matters described in Section 2.2(a) hereof are not irrevocable,
and Stockholder hereby revokes any and all prior proxies with
respect to such Subject Shares as they relate to such matters.
Prior to the Expiration Date, Stockholder shall not directly or
indirectly grant any proxies or powers of attorney with respect to
the matters set forth in Section 2.2(a) hereof (other than to
Parent), deposit any of the Subject Shares or enter into a voting
agreement (other than this Agreement) with respect to any of the
Subject Shares relating to any matter described in Section
2.2(a).
(b)
Stockholder will (i) use all reasonable efforts to cooperate with
the Company, Parent and Merger Sub in connection with the
transactions contemplated by the Merger Agreement, (ii) promptly
take such actions as are necessary to consummate such transactions,
and (iii) provide any information reasonably requested by the
Company, Parent or Merger Sub for any regulatory application or
filing sought for such transactions.
Section
2.4
No Solicitation . Stockholder agrees that:
(a)
Stockholder shall not, and shall cause its Affiliates and its and
their Representatives not to, directly or indirectly, (i) solicit,
initiate or knowingly encourage any proposal that constitutes, or
could reasonably be expected to lead to, an Alternative
Transaction, (ii) participate or engage in discussions or
negotiations with, or disclose or provide any non-public
information relating to Stockholder, the Company, the
Company’s Subsidiaries, Parent or Merger Sub or this
Agreement or the Merger Agreement and the transactions contemplated
hereby and thereby to, or afford access to any of the properties,
books or records of Stockholder, the Company or the Company’s
Subsidiaries to, any Person with respect to any Alternative
Transaction, (iii) approve, endorse, recommend or vote for (or
consent to) any Alternative Transaction or (iv) enter into any
agreement or agreement in principle with any Person with respect to
an Alternative Transaction.
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(b)
Notwithstanding anything to the contrary contained in this
Agreement, (i) the provisions of this Agreement apply solely to
Stockholder when acting in his or its capacity as a stockholder of
the Company and not when acting or purporting to act as a
representative or an officer or director of the Company (it being
understood that the Company has separate and independent
obligations to Parent and Merger Sub under the Merger Agreement,
including, without limitation, Article VII thereof); and (ii) none
of the provisions of this Agreement shall be construed to prohibit,
limit or restrict Stockholder from exercising Stockholder’s
fiduciary duties to the Company and/or its stockholders by voting
or taking any other action whatsoever in Stockholder’s
capacity as a director or officer of the Company.
Section
2.5
No Transfer of Subject Shares; Publicity . Stockholder
agrees that:
(a)
Stockholder (i) shall not subject any of the Subject Shares to, or
suffer to exist on any of the Subject Shares, any Lien, (ii) shall
not Transfer or agree or offer to Transfer any of the Subject
Shares or, with respect to any matter described in Section 2.2(a),
grant any proxy or power-of-attorney with respect to any of the
Subject Shares and (iii) shall take all action reasonably necessary
to prevent creditors in respect of any pledge of the Subject Shares
from exercising their rights under such pledge.
(b)
Unless required by applicable law, neither Stockholder nor any of
its Affiliates or Representatives shall make any press release or
public announcement with respect to the business or affairs of the
Company, Parent or Merger Sub, including this Agreement and the
Merger Agreement and the transactions contemplated hereby and
thereby, without the prior written consent of Parent in each
instance.
Section
2.6
No Appraisal . Stockholder agrees not to make a demand for
appraisal in respect of the Subject Shares pursuant to Chapter
23B.13 et seq. of the WBCA, and hereby irrevocably and
unconditionally waives any rights of appraisal or any
dissenters’ rights pursuant to Chapter 23B.13 et seq. of the
WBCA and any similar rights, in each case to the extent relating to
the Merger or any related transaction, that Stockholder may have by
virtue of the Subject Shares.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND
ADDITIONAL COVENANTS OF
STOCKHOLDER
Stockholder represents, warrants and
covenants to Parent and Merger Sub that:
Section 3.1
Ownership . Stockholder is the sole Beneficial Owner and the
record and legal owner of the Subject Shares identified on
Schedule A and such shares constitute all of the capital
stock of the Company Beneficially Owned by Stockholder. Stockholder
has good and valid title to all of such shares, free and clear of
all Liens, claims, options, proxies, voting agreements and security
interests and has the sole right to such Subject
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Shares and there are no restrictions
on rights of disposition or other Liens pertaining to such Subject
Shares. None of the Subject Shares is subject to any voting trust
or other contract with respect to the voting thereof, and no proxy,
power of attorney or other authorization has been granted with
respect to any of such Subject Shares.
Section
3.2
Authority and Non-Contravention .
(a)
The Stockholder is an individual, and not a corporation, limited
liability company, partnership, trust or other such
entity.
(b)
Assuming due authorization, execution and delivery of this
Agreement by Parent, this Agreement has been duly and validly
executed and delivered by Stockholder and constitutes the legal,
valid and binding obligation of Stockholder, enforceable against
Stockholder in accordance with its terms except (i) to the extent
limited by applicable bankruptcy, insolvency or similar laws
affecting creditors’ rights and (ii) the re
