Exhibit 9.1
FORM OF VOTING AGREEMENT
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VOTING AGREEMENT, dated as of April __, 1998 (this "Agreement"),
between Apollo Apparel Partners, L.P., a Delaware limited partnership
("Apollo"), and Xxxxxx Corporation, a Delaware corporation ("Xxxxxx").
WHEREAS, Magten Asset Management Corp., as agent on behalf of certain
of its accounts, Apollo and Xxxxxx have entered into a letter agreement,
dated March 2, 1998 (the "Letter Agreement"), regarding the basic terms and
conditions of a restructuring of Xxxxxx pursuant to a comprehensive
consensual plan (the "Restructuring Plan");
WHEREAS, as of the date hereof, Apollo is the beneficial owner of
5,924,352 shares of Xxxxxx'x issued and outstanding common stock, par value
$1.00 per share ("Xxxxxx Common Stock");
WHEREAS, in order to implement the Restructuring Plan, Xxxxxx will (i)
hold a meeting of holders of Xxxxxx Common Stock (the "Stockholders") to
obtain approval of Stockholders with respect to certain of the transactions
contemplated by the Restructuring Plan as more fully described in the Letter
Agreement, including, without limitation, (a) the issuance of shares of
Xxxxxx Common Stock to effectuate the Restructuring Plan (the "Stock
Issuance"), (b) an amendment to Xxxxxx'x Certificate of Incorporation to
effectuate a reverse stock split and an increase in the authorized number of
shares of Xxxxxx Common Stock (the "Charter Amendment"), (c) the adoption of
a new stock award and incentive plan (the "Stock Award and Incentive Plan"),
and (d) the election of a new board of directors of Xxxxxx (together with the
Stock Issuance, the Charter Amendment and the Stock Award and Incentive Plan,
the "Restructuring Proposals"); and (ii) in the event that the approval by
the Stockholders of each of the Restructuring Proposals is not obtained or
100% of the holders of Xxxxxx'x 10-1/2% Senior Secured Notes due December 31,
1998 (the "Senior Notes") do not tender their Senior Notes in favor of the
Restructuring Plan, solicit acceptances from Stockholders of a prepackaged
chapter 11 plan of reorganization that is consistent with the terms and
conditions of the Restructuring Plan; and
WHEREAS, pursuant to the Letter Agreement and in order to effectuate
the Restructuring Plan, Apollo has agreed to, among other things, enter into
this Agreement with respect to all the shares of Xxxxxx Common Stock now
owned and which may hereafter be acquired by Apollo (the "Shares").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES
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SECTION 1.01. Voting Agreement. Subject to Apollo's receipt of
proxy or other solicitation materials in respect of the Restructuring Plan
that are consistent with Xxxxxx'x Registration Statement on Form S-4, dated
April 23, 1998, filed with the Securities and Exchange Commission, Apollo
hereby agrees that during the time this Agreement is in effect, (A) at any
meeting of the Stockholders, however called, and in any action by consent of
the Stockholders, Apollo will vote all of its Shares in favor of each of the
transactions contemplated by the Restructuring Plan with respect to which a
vote of the Stockholders is called, including, without limitation, each of
the Restructuring Proposals; (B) Apollo will vote all of its Shares in favor
of any plan of reorganization for which votes to accept or reject such plan
of reorganization have been solicited; provided, that, such plan of
reorganization is consistent with the terms of the Restructuring Plan set
forth in the Letter Agreement; (C) so long as it is the beneficial owner of
the Shares, Apollo will not at any time prior to the termination of the
Letter Agreement, support or encourage, directly or indirectly, any financial
restructuring concerning Xxxxxx other than the Restructuring Plan or any
transaction or other action that is inconsistent with the terms of the
Restructuring Plan; and (D) Apollo will not sell, transfer or assign any of
the Shares or any voting interest therein during the term of the Letter
Agreement except to a purchaser who agrees in writing prior to such
acquisition to be bound by the terms of this Agreement and by all the terms
of the Letter Agreement with respect to the Shares being acquired by such
purchaser.
SECTION 1.02. Irrevocable Proxy. In the event Apollo shall fail
to comply with the provisions of Section 1.01 hereof as determined by Xxxxxx
in its sole discretion, Apollo agrees that such failure shall result, without
any further action by Apollo, in the irrevocable appointment of Xxxxxx, until
termination of this Agreement, as Apollo's attorney and proxy pursuant to the
provisions of Section 212(c) of the General Corporation Law of the State of
Delaware, with full power of substitution, to vote, and otherwise act (by
written consent or otherwise) with respect to the Shares which Apollo is
entitled to vote at any meeting of Stockholders (whether annual or special
and whether or not an adjourned or postponed meeting) or consent in lieu of
any such meeting or otherwise, on the matters and in the manner specified in
Section 1.01 hereof. THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND
COUPLED WITH AN INTEREST. Apollo hereby revokes all other proxies and powers
of attorney with respect to the Shares which Apollo may have heretofore
appointed or granted, and no subsequent proxy or power of attorney shall be
given or written consent executed (and if given or executed, shall not be
effective) by Apollo with respect thereto. All authority herein conferred or
agreed to be conferred shall survive the dissolution of Apollo as a
partnership and any obligations of Apollo under this Agreement shall be
binding upon the successors, assigns, heirs, executors, administrators and
representatives of Apollo.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF APOLLO
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Apollo hereby represents and warrants to Xxxxxx as follows:
SECTION 2.01. Authority Relative to This Agreement. This
Agreement has been duly and validly executed and delivered by Apollo and,
assuming the due authorization, execution and delivery by Xxxxxx, constitutes
a legal, valid and binding obligation of Apollo, enforceable against Apollo
in accordance with its terms.
SECTION 2.02. No Conflict. (a) The execution and delivery of this
Agreement by Apollo does not, and the performance of this Agreement by Apollo
shall not, (i) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to Apollo or by which the Shares are bound or
affected, or (ii) 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 result in the creation of a lien or encumbrance on any
of the Shares pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or
obligation to which Apollo is party or by which Apollo or the Shares are
bound or affected, except, in the case of the foregoing, for any such
conflicts, violations, breaches, defaults or other occurrences which would
not prevent or delay the performance by Apollo of its obligations under this
Agreement.
(b) The execution and delivery of this Agreement by Apollo does not,
and the performance of this Agreement by Apollo shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any domestic governmental or regulatory authority, except for applicable
requirements, if any, of the Securities Exchange Act of 1934, as amended, and
title 11 of the United States Code.
SECTION 2.03. Title to the Shares. Apollo hereby represents that,
(a) as of the date hereof, Apollo is either the record owner or the
beneficial owner of 5,924,352 shares of Xxxxxx Common Stock, and (b) as of
the date hereof and at any meeting of the Stockholders held during the term
of this Agreement, Apollo has, and shall have, the ability to vote all of the
Shares in accordance with Section 1.01 of this Agreement. Except as provided
in this Agreement, Apollo has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares.
ARTICLE III
COVENANTS OF APOLLO
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SECTION 3.01. No Inconsistent Agreements. Apollo hereby covenants
and agrees that, except as contemplated by this Agreement and the Letter
Agreement, Apollo shall not enter into any voting agreement or grant a proxy
or power of attorney with respect to the Shares which is inconsistent with
this Agreement.
SECTION 3.02. Transfer of Title. Apollo hereby covenants and
agrees that it shall not transfer record or beneficial ownership of any of
the Shares unless the transferee agrees in writing to be bound by the terms
of this Agreement and the Letter Agreement with respect to the Shares being
acquired by such transferee.
ARTICLE IV
MISCELLANEOUS
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SECTION 4.01. Termination. This Agreement shall terminate upon
the earlier of: (i) the Effective Date (as defined in the Letter Agreement);
and (ii) the termination of Apollo's obligations under the Letter Agreement
in accordance with the terms and conditions thereof.
SECTION 4.02. Enforcement of Agreement. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions
of this Agreement were not performed in accordance with its specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction to prevent any breach of this Agreement and to
enforce specifically the terms and provisions hereof in any Delaware Court,
this being in addition to any other remedy to which they are entitled at law
or in equity.
SECTION 4.03. Successors and Affiliates. This Agreement shall
inure to the benefit and shall be binding upon the parties hereto and their
respective successors, assigns, heirs, executors, administrators and
representatives. If any person shall acquire additional Shares from Apollo
in any manner, whether by operation of law or otherwise, such Shares shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Shares, such person shall be conclusively deemed to have agreed to be
bound by and to comply with all of the terms and provisions of this
Agreement. Without limiting the foregoing, Apollo specifically agrees that
the obligations of Apollo hereunder shall not be terminated by operation of
law, including, without limitation, the dissolution of Apollo as a
partnership.
SECTION 4.04. Entire Agreement. This Agreement constitutes the
entire agreement between Xxxxxx and Apollo with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written
and oral, between Xxxxxx and Apollo with respect to the subject matter
hereof; provided however, that the terms and conditions set forth in the
Letter Agreement shall remain in full force and effect.
SECTION 4.05. Amendment. This Agreement may not be amended except
by an instrument in writing signed by the parties hereto.
SECTION 4.06. Waivers. Except as provided in this Agreement, no
action taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any
representations, warranties, covenants or agreements contained in this
Agreement. The waiver by any party hereto of a breach of any provision
hereunder shall not operate or be construed as a waiver of any prior or
subsequent breach of the same or any other provision hereunder.
SECTION 4.07. Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
SECTION 4.08. Governing Law. Except to the extent that the
General Corporation Law of the State of Delaware is mandatorily applicable to
the rights of Apollo, this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York regardless of the laws
that might otherwise govern under applicable principles of conflicts of law.
SECTION 4.09. Counterparts. This Agreement may be executed in
counterparts by manual or facsimile signature of each undersigned party, and
all such counterparts shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date hereof.
APOLLO APPAREL PARTNERS, L.P.
By: AIF II, L.P., its General Partner
By:
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Name:
Title:
XXXXXX CORPORATION
By:
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Name:
Title:
