NO SHOP AGREEMENT
Exhibit
(e)(2)
This No Shop Agreement (this “Agreement”) is made as
of September 8, 2008 by and between Xxxxxxxx, Inc., a
Delaware corporation (“Xxxxxxxx”), and adidas AG, a
corporation organized under the laws of Germany
(“adidas”).
RECITALS
By letter dated September 8, 2008 (the “Letter of
Interest”), adidas expressed a preliminary, non-binding
indication of interest to acquire all of the outstanding common
stock of Xxxxxxxx for a purchase price of $6.00 per share in
cash payable directly to Xxxxxxxx shareholders (including for
this purpose holders under Xxxxxxxx’x equity incentive
plans of options and any similar derivatives, to the extent such
per-share purchase price exceeds the applicable per-share
exercise price, and of restricted stock), as more particularly
described in the Letter of Interest (the “Proposed
Acquisition”).
In order to induce adidas to devote resources to finalizing due
diligence and negotiating and executing a definitive agreement
in connection with the Proposed Acquisition, Xxxxxxxx is willing
to execute and deliver this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which both parties hereby acknowledge, the
parties hereby agree as follows:
| 1. | Xxxxxxxx hereby agrees that from the date above until the earlier of (a) 15 business days later and (b) the date that adidas notifies Xxxxxxxx in writing of its decision to terminate discussions with respect to a Proposed Acquisition (as such date may be extended by mutual agreement), neither Xxxxxxxx nor any of its directors, officers, employees, stockholders, affiliates, representatives or agents (collectively, “Representatives”) will: (i) solicit, encourage, initiate, agree to, or participate in any negotiations or discussions with respect to any offer, inquiry, indication of interest or proposal, whether oral or written, to directly or indirectly acquire Xxxxxxxx or any business or significant assets thereof (except Xxxxxxxx’x subsidiary Gekko Brands, LLC and its subsidiaries (collectively, the “Gekko”)), whether by purchase of assets, joint venture, purchase of stock, merger or other business combination (any of the foregoing, a “Competing Transaction”); or (ii) disclose any information (other than information relating to the Gekko) not customarily disclosed in the ordinary course of the operation of Xxxxxxxx’x business to any person concerning Xxxxxxxx and which Xxxxxxxx believes could be used for the purposes of formulating any offer, indication of interest or proposal for a Competing Transaction. For the avoidance of doubt, the foregoing shall not limit Xxxxxxxx’x ability to publicly disclose that it is evaluating strategic alternatives (without reference to adidas, this Agreement or the Letter of Interest). |
| 2. | Xxxxxxxx will immediately cease and will cause to be terminated all existing discussions or negotiations with any parties (other than adidas or its affiliates and except for discussions pertaining to the Gekko), whether by Xxxxxxxx or its Representatives, which could reasonably be expected to lead to any Competing Transaction. |
| 3. | adidas shall analyze and consider the Proposed Acquisition pursuant to the Letter of Interest and subject to the conditions contained herein and in the Letter of Interest. For the avoidance of doubt, the Letter of Interest is intended solely as a basis for further discussion and is not intended to be and does not constitute a legally binding obligation on the part of adidas or Xxxxxxxx to consummate the Proposed Acquisition. No legally binding obligations to consummate the Proposed Acquisition will be created, implied or inferred until a definitive agreement in form and substance satisfactory to Xxxxxxxx and adidas is executed and delivered by both parties (subject to any conditions that may be contained therein). |
[signature
page follows]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
XXXXXXXX, INC.
| By: |
/s/ Xxxxx
X. Xxxxxxxx Xxxxx X. Xxxxxxxx Chief Executive Officer |
ADIDAS AG
| By: |
/s/ Xxxxxxx
Xxxxxx Xxxxxxx Xxxxxx President and Chief Executive Officer |
| By: |
/s/ Xxxxx
Xxxxxxx Xxxxx Xxxxxxx General Counsel |
