STOCK TRANSFER AGREEMENT
EXHIBIT
99.1
STOCK
TRANSFER AGREEMENT
THIS
STOCK TRANSFER AGREEMENT (this “Agreement”),
is
entered into as of April 2, 2007 (the “Agreement
Date”
),
by
and among Xxxxx X. Xxxxx (“DJ”),
Xxxxx
Xxxxx (“EJ”)
and
Xxxxxxx Xxxxx (“RJ”).
Each
of DJ, EJ and RJ are herein sometimes referred to as a “Party”,
and,
collectively as the “Parties.”
WITNESSETH:
WHEREAS,
each
Party owns the number of shares of common stock, par value $.05 per share,
of
The Dress Barn, Inc., a Connecticut corporation, set forth opposite such Party’s
name on Schedule A hereto; and
WHEREAS,
the
Parties have agreed that it would be to their respective welfare and advantage
to regulate the transfer of such Shares in accordance with the terms
hereof;
NOW
THEREFORE,
in
consideration of the premises and the mutual covenants and agreements contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1. Defined
Terms.
For
purposes of this Agreement, the following terms shall have the following
meanings:
A. “Business
Day”
shall
mean any day on which the New York Stock Exchange (or any successor thereto)
is
open for ordinary business.
B. “Company”
means
The Dress Barn, Inc., a Connecticut corporation.
C. “DJ
Acceptance”
has
the
meaning ascribed thereto in Section 4 hereof.
D. “Market
Price”
of
a
Share means with respect to (i) any Offered Shares subject to a DJ Acceptance,
the closing sales price per share of common stock, par value $.05 per share,
of
the Company on the NASDAQ (or any successor thereto) on the third Business
Day
after DJ’s receipt of a Notice of Offer and (ii) any Offered Shares not
subject to a DJ Acceptance, the sales price per share of common stock, par
value
$.05 per share, of the Company at the time such Offered Shares are sold on
the
NASDAQ (or any successor thereto) on the third Business Day after DJ’s receipt
of a Notice of Offer pursuant to any customary brokerage or block trade
transaction.
E. “Notice
of Offer”
has
the
meaning ascribed thereto in Section 4 hereof.
F. “Offered
Shares”
has
the
meaning ascribed thereto in Section 4 hereof.
G. “Permitted
Transferee”
has
the
meaning ascribed thereto in Section 2 hereof.
H. “Person”
means
an individual, corporation, partnership, limited liability company, firm, joint
venture, association, joint stock company, trust, unincorporated organization
or
other entity, or any governmental entity or quasi-governmental body or
regulatory authority.
I. “Selling
Stockholder”
has
the
meaning ascribed thereto in Section 4 hereof.
J. “Shares”
means
the shares of common stock, par value $.05 per share, of the Company owned
by
the Parties on the date hereof and listed on Schedule A hereto and any
securities (including shares of common stock, par value $.05 per share, of
the
Company) issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the shares of common stock, par value $.05
per share, of the Company listed on Schedule A hereto.
K. “Subject
Stockholder”
means
EJ, RJ or any Permitted Transferee of either of them.
L. “Transfer”
means
any sale, transfer or other disposition of property, including the
Shares.
M. “Total
Owned Shares”
of
a
Party means the sum of the Shares owned by such Party plus any Shares
Transferred at any time by such Party to any Permitted Transferee.
2. Permitted
Transfers.
Notwithstanding anything in this Agreement to the contrary, the restrictions
contained in Sections 3 and 4 of this Agreement with respect to the Transfer
of
Shares shall not apply to:
A. any
Transfer without consideration by any Party to the spouse or lineal descendants
of such Party or to a trust of which there are no principal beneficiaries other
than the spouse or lineal descendants of such Party;
B. any
Transfer (i) to a trust where the beneficiary of such trust is a charitable
organization to which Transfers of Shares would be deductible for Federal income
and gift tax purposes or (ii) directly to any such charitable organization
(a
Transfer pursuant to this clause (b)(ii) is hereinafter referred to as a
“Charitable Transfer”)); or
C. any
Transfer to a legal representative of such Party in the event such Party becomes
mentally incompetent;
provided that,
in any
such case, each transferee agrees in writing to take subject to and to comply
with the restrictions on Transfer contained in this Agreement. In addition,
none
of the restrictions on Transfer of Shares contained in this Agreement shall
apply to a Transfer by any Party upon his or her death, by will, by the laws
of
descent or by operation of law, except that any such transferee shall be deemed
to take such Shares subject to all provisions of this Agreement applicable
to
the transferor. Any transfer of Shares pursuant to and in compliance with this
Section 2 shall be a permitted transfer under this Agreement, and any transferee
of such Shares pursuant to and in compliance with this Section 2 is herein
referred to as a “Permitted Transferee.” Each Permitted Transferee, if not
previously a Party, shall upon consummation of the Transfer, be deemed a Party.
Notwithstanding anything in this Section 2 to the contrary, each Party
acknowledges and agrees that after the consummation of any Charitable Transfer
in accordance with the terms hereof, the Shares subject to such Charitable
Transfer shall no longer be subject to this Agreement.
3. Limitation
on Transfer of Shares.
Except
for Transfer to a Permitted Transferee, no Party shall Transfer in excess of
10%
of the Total Owned Shares of such Party in any calendar year (the “Annual
Limitation”; provided,
however,
that if
any Party shall die during the term of this Agreement, the estate of such Party
may sell in excess of the Annual Limitation if such sale(s) are necessary to
pay
estate taxes and in the best interests of the estate as determined in good
faith
by the executor or personal representative of such estate.
4. First
Offer Rights.
A. Except for Transfers to Permitted Transferees, a Subject
Stockholder may Transfer Shares only in compliance with the provisions of this
Section 4.
B. A
Subject Stockholder desiring to Transfer Shares (a “Selling Stockholder”) shall
first deliver written notice to DJ (hereinafter referred to as the “Notice of
Offer”) which Notice of Offer shall specify (i) the number of Shares owned by
the Selling Stockholder which such Selling Stockholder desires to sell (the
“Offered Shares”); (ii) that the Offered Shares, when added to the aggregate
amount of Shares previously sold by such Selling Stockholder in the current
calendar year, would not exceed the limitation set forth in Section 3 hereof
and
(iii) that the proposed cash purchase price per share for the Offered Shares
shall be the Market Price. The Notice of Offer shall constitute an irrevocable
offer by the Selling Stockholder to sell to DJ the Offered Shares at the Market
Price.
C. Within
two Business Days following his receipt of the Notice of Offer, DJ shall notify
the Selling Stockholder as to the number of Offered Shares, if any, he is
electing to purchase (such notification is hereinafter referred to as the “DJ
Acceptance”). If DJ does not provide a DJ Acceptance to the Selling Stockholder
within such period, DJ shall be deemed to have declined to purchase any of
the
Offered Shares. A DJ Acceptance shall be deemed to be an irrevocable commitment
to purchase from the Selling Stockholder the number of Offered Shares which
DJ
has elected to purchase pursuant to the DJ Acceptance.
D. If
DJ does not elect to purchase the total number of the Offered Shares then
available for purchase, the Selling Stockholder may transfer the total number
of
the Offered Shares not subject to a DJ Acceptance on the third Business Day
after DJ’s receipt of the Notice of Offer for cash at a price per share not less
than the Market Price to one or more third parties in an ordinary brokerage
or
block trade transaction. If the Selling Stockholder does not complete the sale
of the Offered Shares on such third Business Day or within four consecutive
business days thereafter, the provisions of this Section 4 shall again apply,
and no sale of such Offered Shares by the Selling Stockholder shall be made
otherwise than in accordance with the terms of this Agreement.
E. The
closing of purchases of Offered Shares by DJ pursuant to any DJ Acceptance
shall
take place no later than seven Business Days after the date the Notice of Offer
was received by DJ, at 10:00 AM local time at the principal offices of the
Company, or at such other date, time or place as DJ and the Selling
Stockholder(s) may agree. At such closing, the Selling Stockholder(s) shall
sell, transfer and deliver to DJ full right, title and interest to the Offered
Shares so purchased by DJ, free and clear of any liens, security interests,
adverse claims or restrictions of any kind and nature, and shall deliver to
DJ a
certificate or certificates representing the Offered Shares sold to DJ, in
each
case duly endorsed for transfer or accompanied by appropriate stock transfer
power duly endorsed. Simultaneously with delivery of such certificate(s), DJ
shall deliver to the Selling Stockholder(s), by wire transfer of immediately
available funds to such bank account as the Selling Stockholder(s) shall
designate, a cash amount equal to the product of the Market Price and the number
of Offered Shares being acquired by DJ, in full payment of the purchase price
of
the Offered Shares purchased.
F. For
the avoidance of doubt, each Party acknowledges and agrees that from and after
the consummation of any Transfer of Offered Shares in accordance with the terms
hereof, such Offered Shares shall no longer be subject to the terms of this
Agreement.
5. Representations
and Warranties of Each Party.
Each
Party, severally but not jointly, represents and warrants to the other Parties
that:
A. such
Party (the “Representing
Party”)
has
full right, power and authority to execute, deliver and perform this
Agreement;
B. this
Agreement has been duly executed and delivered by or on behalf of the
Representing Party and constitutes a legal, valid and binding obligation of
the
Representing Party, enforceable against the Representing Party in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting the rights of creditors generally
or
by the application of general equity principles;
C. no
consent, approval, authorization or order of any Person is required for the
execution, delivery or performance of this Agreement by the Representing Party;
and
D. neither
the execution, delivery or performance of this Agreement by the Representing
Party will (x) conflict with, or result in a breach of, or constitute a default
under, or result in violation of, any agreement or instrument to which the
Representing Party or his or her property is bound, or (y) result in the
violation of any applicable law or order, judgment, writ, injunction, decree
or
award of any court, administrative agency or governmental authority.
6. Expenses.
Each
Party shall pay all of such Party’s costs and expenses in connection with the
transactions contemplated hereby.
7. Public
Announcements.
A. No
Party hereto will issue or cause the publication of any press release or
otherwise make any public and/or private statement with respect to the
transactions contemplated hereby without the prior written consent of the other
Parties hereto; provided,
however,
any
Party may make a public and/or private announcement to the extent required
by
law or judicial process.
8. Arbitration;
Governing Law.
This
Agreement shall be governed by the laws of the State of New York. Any
controversy or claim arising out of or relating to this Agreement, or breach
thereof, shall be submitted to (i) the United States federal courts located
in
the borough of Manhattan or the courts of the State of New York located in
borough of Manhattan and any appellate court form any thereof and hereby
irrevocably accept and submit to the non-exclusive jurisdiction of each of
the
aforesaid courts in personam, generally and unconditionally with respect to
any
action, suit or proceeding for themselves and in respect of their respective
properties, assets and revenues and (ii) that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.
9. Term
of Agreement.
The
term of this Agreement shall continue for so long as DJ is an employee of the
Company and shall terminate on the date DJ ceases to be an employee of the
Company.
10. Notices.
All
notices and other communications hereunder shall be validly given or made if
in
writing, (i) when delivered personally (by courier service or otherwise),
(ii) when sent by facsimile or (iii) when actually received if mailed by
first class certified or registered United States mail or recognized overnight
courier service, postage prepaid and return receipt requested, and all legal
process with regard hereto shall be validly served when served in accordance
with applicable law, in each case to the address of the Party to receive such
notice or other communication set forth below, or at such other address as
any
Party may from time to time advise the other Parties pursuant to this
subsection:
If
to DJ:
Xxxxx
X.
Xxxxx
If
to
EJ:
Xxxxx
Xxxxx
If
to
RJ:
Xxxxxxx
Xxxxx
11. Entire
Agreement; Amendment.
This
Agreement (including the Schedules hereto) constitutes the entire agreement
among the Parties relating to the subject matter hereof and shall supersede
any
and all prior agreements and understandings, whether written or verbal. This
Agreement may not be modified, amended, altered or supplemented except by a
written agreement executed by each of the Parties.
12. Severability.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall not invalidate the remaining provisions hereof, and any
such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction, and any such
provision, to the extent invalid or unenforceable, shall be replaced by a valid
and enforceable provision which comes closest to the intention of the Parties
underlying such invalid or unenforceable provision.
13. Descriptive
Headings.
Descriptive headings used in this Agreement are for convenience only and shall
not control or affect the meaning or construction of any provision of this
Agreement.
14. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
document.
15. Acknowledgements.
The
undersigned parties have read this Agreement, fully understand the terms
contained herein, agree that all the terms and conditions in this Agreement
are
both reasonable and essential requirements of their relationship, and have
the
authority to bind themselves hereto.
IN
WITNESS WHEREOF, this Stock Transfer Agreement has been executed on the
Agreement
Date.
/s/
XXXXX
X. XXXXX
Xxxxx
X.
Xxxxx
/s/
XXXXX
XXXXX
Xxxxx
Xxxxx
/s/
XXXXXXX XXXXX
Xxxxxxx
Xxxxx
Schedule
A to Stock Transfer Agreement
|
Name
of Stockholder
|
No.
of Shares
of
Common Stock
|
|
Xxxxx
X. Xxxxx
|
4,790,298
|
|
Xxxxx
Xxxxx
|
4,780,298
|
|
Xxxxxxx
Xxxxx
|
4,676,298
|
