EXHIBIT 99.1
VOTING AGREEMENT
VOTING AGREEMENT dated as of this 7th day of May 2003 (this
"Agreement") is made by and among GLOBAL BRAND HOLDINGS, LLC, a New York
limited liability company ("Global"), and THE SIMON GROUP LLC, a New York
limited liability company, and XXXXXX X. XXXXX (the "Holders").
RECITALS
WHEREAS, the Holders own shares of the Company Stock (as defined
below);
WHEREAS, the execution and delivery of this Agreement is a condition
to the transactions contemplated by that certain Trademark Purchase Agreement,
dated as of May 7, 2003, by and among Aris Industries, Inc., a New York
corporation ("Aris"), its wholly-owned subsidiary, Europe Craft Imports, Inc.,
a New Jersey corporation ("ECI"), and ECI's wholly-owned subsidiary, XOXO
Clothing Company, Inc., a Delaware corporation ("XOXO Inc.;" Aris and XOXO
Inc. being collectively referred to herein as the "Sellers"), ECI's
wholly-owned subsidiary Marcade Group Realty Corporation, a New York
corporation ("Marcade"), the wholly-owned subsidiary of XOXO Inc., 8-3
Retailing Inc., a California corporation ("8-3 Retailing"), (8-3 Retailing and
Marcade being collectively referred to herein as the "Other Subsidiaries"),
Global Brand Holdings, LLC, a New York limited liability company (the
"Buyer"), Xxxxxxx Xxxxx and Xxx Xxxxxx; and
WHEREAS, the Holders wish to induce Global, Xxxxxxx Xxxxx, Xxx
Xxxxxx, the Sellers and the Other Subsidiaries to enter into the Trademark
Purchase Agreement and, therefore, the Holders are willing to enter into this
Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Holders. The Holders
represent and warrant to Global as follows:
(a) Ownership of Securities. The Holders are the beneficial
owner of the number of shares of Aris Industries, Inc. Common Stock, $.01 par
value (the "Company Stock"), set forth on the signature page to this Agreement
(the "Existing Securities," and, together with any shares of the Company Stock
or other securities of the Company hereafter acquired by the Holders, the
"Subject Securities"). As of the date hereof, the Holders are also the
beneficial owners of options to purchase the number of shares of the Company
Stock as are set forth on the signature page to this Agreement (the
"Options"). The Holders do not own any capital stock or other securities of
the Company (including any options, warrants, rights, commitments, preemptive
rights or agreements of any kind for the issuance or sale of, or outstanding
securities convertible into any shares of capital stock, of any class, of the
Company Stock, or outstanding warrants, options or other rights to acquire any
such convertible securities or stock appreciation rights or other instrument
whose value is derived from the Company Stock) on the date of this Agreement
other than (i) the Existing Securities and (ii) the Options. The Holders have
voting power and power to issue instructions with respect to the voting of the
Existing Securities, power of disposition, power of exercise or conversion and
the power to demand appraisal rights, in each case with respect to all of the
Existing Securities. On the date of the special meeting of shareholders of the
Company, at which or pursuant to which the Trademark Purchase Agreement is to
be considered, the Holders will have voting power and power to issue
instructions with respect to the voting of all of the Subject Securities,
power of disposition, power of exercise or conversion and the power to demand
appraisal rights, in each case with respect to all of the Subject Securities.
(b) Power; Binding Agreement. The Holders have full power
and authority to enter into and perform all of the Holders' obligations under
this Agreement. The execution by the Holders of this Agreement and the
performance of their obligations hereunder have been duly authorized by all
necessary corporate or partnership action on the part of the Holders and no
other action on the part of the Holders is required in connection therewith.
This Agreement has been duly and validly executed and delivered by the Holders
and constitutes a valid and binding agreement of the Holders, enforceable
against the Holders in accordance with its terms.
(c) No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by the Holders and
the consummation by the Holders of the transactions contemplated hereby and
neither the execution and delivery of this Agreement by the Holders nor the
consummation by the Holders of the transactions contemplated hereby nor
compliance by the Holders with any of the provisions hereof shall conflict
with, or result in any breach of, any applicable organizational documents of
the Company applicable to the Holders or, if applicable, any organizational
documents of the Holders (including, without limitation, any charter documents
or partnership agreement), result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to
any third-party right of termination, cancellation, material modification or
acceleration) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to
which the Holders are a party or by which the Holders' properties or assets
may be bound or violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to the Holders or any of the Holders'
properties or assets.
(d) No Liens. The Existing Securities are now and, at all times
during the term hereof, the Subject Securities will be held by the Holders, or
by a nominee or custodian for the benefit of such Holders, free and clear of
all liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever.
SECTION 2. Agreement to Vote Shares. At every meeting of the
shareholders of the Company called with respect to any of the following, and
at every postponement or adjournment thereof, and on every action or approval
by written consent of the shareholders of the Company with respect to any of
the following, the Holders agree that they shall vote all of the Subject
Securities that they own beneficially on the record date of any such vote in
favor of the Trademark Purchase Agreement and the related transactions (the
"Trademark Purchase Agreement Vote").
SECTION 3. IRREVOCABLE PROXY. THE HOLDERS HEREBY GRANT TO, AND
APPOINT GLOBAL AND ANY MANAGING MEMBER OF GLOBAL, IN HIS CAPACITY AS A
MANAGING MEMBER OF GLOBAL, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO
ANY SUCH OFFICE OF GLOBAL, AND ANY OTHER DESIGNEE OF GLOBAL, EACH OF THEM
INDIVIDUALLY, THE HOLDERS' PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF
SUBSTITUTION) TO VOTE OR ACT BY WRITTEN CONSENT WITH RESPECT TO THE HOLDERS'
SUBJECT SECURITIES IN ACCORDANCE WITH SECTION 2 HEREOF. THIS PROXY IS COUPLED
WITH AN INTEREST AND SHALL BE IRREVOCABLE, AND THE HOLDERS WILL TAKE SUCH
FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKE ANY PROXY PREVIOUSLY
GRANTED BY THEM WITH RESPECT TO THE SUBJECT SECURITIES.
SECTION 4. Covenants of the Holders. The Holders hereby agree and
covenant that:
(a) Restriction on Transfer, Proxies and Noninterference. The
Holders shall not, directly or indirectly: (i) until the earlier to occur of (x)
the Trademark Purchase Agreement Vote or (y) ninety (90) days from the date of
this Agreement, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to, or consent to, the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of any or all of the Subject Securities; (ii) except as
contemplated by this Agreement, grant any proxies or powers of attorney,
deposit any such Subject Securities into a voting trust or enter into a voting
agreement with respect to any of the Subject Securities; or (iii) take any
action that would make any representation or warranty contained herein untrue
or incorrect or have the effect of preventing, restricting or disabling such
Holders from performing their obligations under this Agreement. After the
occurrence of the Trademark Purchase Agreement Vote, if the Holders offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to, or consent to, the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, any or all of the
Subject Securities, shall, within five (5) business days of such event,
deliver to Global (at the address set forth in Annex A hereof) written notice
of the occurrence of such event. Such notice shall set forth the number and
class of Subject Securities which were the subject of the transaction, the
date of the transaction, and the number of each class of Subject Securities
owned by the Holders after giving effect to the transaction.
SECTION 5. Assignment; Benefits. The rights (but not the obligations)
of Global hereunder may be assigned, in whole or in part, to any direct
wholly-owned subsidiary of Global, to the extent and for so long as it remains
a direct wholly-owned subsidiary of Global. Other than as permitted in the
preceding sentence, this Agreement may not be assigned by any party hereto
without the prior written consent of the other party. This Agreement shall be
binding upon, and shall inure to the benefit of, the Holders, Global and their
respective successors and permitted assigns
SECTION 6. Notices. Any notice required to be given hereunder shall
be in writing and shall be sent by facsimile transmission (confirmed by any of
the methods that follow), courier service (with proof of service), hand
delivery or certified or registered mail (return receipt requested and
first-class postage prepaid) to the address of such party set forth on Annex A
hereto or to such other address as any party shall specify by written notice
so given, and such notice shall be deemed to have been delivered as of the
date so delivered.
SECTION 7. Specific Performance. The parties hereto agree that
irreparable harm 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 or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of
the United States or any state thereof having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
SECTION 8. Amendment. This Agreement may not be amended or modified,
except by an instrument in writing signed by or on behalf of each of the
parties hereto. This Agreement may not be waived by either party hereto,
except by an instrument in writing signed by or on behalf of the party
granting such waiver.
SECTION 9. Governing Law; Jurisdiction and Venue. This Agreement
shall be governed by, construed and enforced in accordance with the laws of
the State of New York, without regard to its rules regarding conflict of laws.
The parties hereto hereby irrevocably and unconditionally consent to and
submit to the exclusive jurisdiction of the federal and state courts in the
County and State of New York for any actions, suits or proceedings arising out
of, or relating to, this Agreement, the transactions contemplated hereby or
any document referred to herein (and the parties agree not to commence any
action, suit or proceeding related thereto except in such courts), and further
agree that service of any process, summons, notice or document by U.S.
registered mail to the respective addresses set forth on the signature pages
hereto shall be effective service of process for any such action, suit or
proceeding brought against any party in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement, or the
transactions contemplated hereby, in the courts of the State of New York or
the United States of America located in the County and State of New York, and
hereby further irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such action, suit or proceeding brought in
any such court has been brought in any inconvenient forum.
SECTION 10. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
SECTION 11. Defined Terms. Terms used herein but not otherwise
defined shall have the meanings set forth in the Trademark Purchase Agreement.
SECTION 12. Termination. This Agreement shall terminate upon the
termination of the Trademark Purchase Agreement pursuant to its terms. Upon
any termination of this Agreement, this Agreement shall thereupon become void
and of no further force and effect, and there shall be no liability in respect
of this Agreement or of any transactions contemplated hereby or by the
Trademark Purchase Agreement on the part of any party hereto or any of its
directors, officers, partners, shareholders, employees, agents, advisors,
representatives or affiliates; provided, however, that nothing herein shall
relieve any party from any liability for such party's willful breach of this
Agreement; and provided further that nothing herein shall limit, restrict,
impair, amend or otherwise modify the rights, remedies, obligations or
liabilities of any person under any other contract or agreement, including,
without limitation, the Trademark Purchase Agreement.
[Remainder of this Page Intentionally Left Blank]
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written above.
GLOBAL BRAND HOLDINGS, LLC
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Member
HOLDERS:
/s/ Xxxxxx Xxxxx
-------------------------------------
XXXXXX X. XXXXX
Existing Securities:
Class: _common_______
Number of Shares: _45,066,545____
Options:
Number of Underlying Shares: _2,250,000___
THE SIMON GROUP LLC
/s/ Xxxxxx Xxxxx
-------------------------------------
By: Xxxxxx X. Xxxxx,
Its Sole Managing Member
Existing Securities:
Class: _common_______
Number of Shares: _44,745,045____
Options:
Number of Underlying Shares: _0_
ANNEX A
Notification Information for the Holders:
Global Brand Holdings, LLC
Xxxxx 000
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxx, Managing Member
Telecopy: 000-000-0000
Xxxxxx Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy: 000-000-0000
The Simon Group LLC
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy: 000-000-0000
