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Exhibit 10.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of this day
of
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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 shall be qualified under, the applicable rules and
regulations of the United States securities laws and the American
Stock Exchange or such other principal trading market on which
Endeavor’s securities trade. A
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