Exhibit 7.1
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT (this "Agreement") is made and
entered into as of the 3rd day of July, 2000, by and between THE
MAY DEPARTMENT STORES COMPANY, a Delaware corporation ("May"),
and (Item 1 on Attached Schedule) ("Shareholder"), a holder
of shares of DAVID'S BRIDAL, INC., a Florida corporation
("Company"). May and Shareholder are later in this Agreement
sometimes referred to individually as a "Party" or collectively
as the "Parties."
RECITALS
This Agreement is entered into with reference to the
following facts, objectives, and definitions:
A. Contemporaneously with the execution and delivery of
this Agreement, May, Company, and Alpha Omega Acquisition, Inc.,
a Florida Corporation and a wholly-owned subsidiary of May
("Acquisition"), are entering into an Agreement and Plan of
Merger, dated as of the date of this Agreement (the "Merger
Agreement"), pursuant to which it is contemplated that Company
will merge (the "Merger") with Acquisition, upon the terms and
conditions set forth in the Merger Agreement; and
B. It is contemplated that the acquisition be
accomplished by Acquisition's commencing a tender offer (the
"Offer") to purchase all of the issued and outstanding shares of
the $.01 par value common stock of Company (the "Common Stock");
and
C. The Board of Directors of Company has previously
approved the Merger Agreement and this Agreement; and
D. Shareholder owns certain of the issued and outstanding
shares, and may acquire additional shares after the date of this
Agreement, of the Common Stock, and desires to facilitate the
consummation of the Merger, and for such purpose Shareholder has
agreed, except as provided herein, (i) to vote 90% of these
shares, (ii) to grant May or its designee an irrevocable proxy to
exercise the voting power of Shareholder with respect to 90% of
these shares, and (iii) to grant May or its designee an
irrevocable option to purchase 90% of these shares, all as
provided in this Agreement.
NOW, THEREFORE, in consideration of the covenants and
conditions contained in this Agreement, the Parties represent,
warrant, and agree as follows:
AGREEMENT
1. Representations and Warranties of Shareholder.
Shareholder represents and warrants that (i) Shareholder is the
holder, free and clear of all liens and encumbrances, of
(Item 2 on Attached Schedule) shares of the Common Stock,
90% ( (Item 3 on Attached Schedule) shares) of which are
subject to this Agreement and are referred to in this Agreement
as the "Shares"; (ii) subject to compliance with the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as amended, and the
rules and regulations thereunder (the "HSR Act"), Shareholder has
full power and authority to make, enter into, and carry out the
terms of this Agreement; and (iii) the execution, delivery, and
performance of this Agreement by Shareholder will not violate any
other agreement to which Shareholder is a party, including,
without limitation, any voting agreement, shareholder agreement,
or voting trust.
2. Grant of Irrevocable Proxy. Shareholder hereby
irrevocably appoints May or any designee of May the lawful agent,
attorney, and proxy of Shareholder, during the term of this
Agreement, to (a) vote the Shares in favor of the Merger, (b)
vote the Shares against any action or agreement that would result
in a breach in any material aspect of any covenant,
representation, or warranty or any other obligation or agreement
of Company under the Merger Agreement; and (c) vote the Shares
against any action or agreement that would impede, interfere
with, delay, postpone, or attempt to discourage the Merger,
including, but not limited to: (i) any extraordinary corporate
transaction, such as a merger, consolidation or other business
combination involving Company, (ii) a sale or transfer of a
material amount of the assets of Company or a reorganization,
recapitalization, or liquidation of Company, (iii) any change in
the management or board of directors of Company, except as
otherwise agreed to in writing by May, (iv) any change in the
present capitalization or dividend policy of Company; or (v) any
other change in Company's corporate structure. Shareholder
intends this proxy to be irrevocable and coupled with an interest
and will take such further action or execute such other
instruments as may be necessary to effectuate the intent of this
proxy and hereby revokes any proxy previously granted by him with
respect to the Shares. Shareholder shall not hereafter, unless
and until this Agreement terminates, purport to vote (or execute
a consent with respect to) any of the Shares (other than through
this irrevocable proxy) or grant any other proxy or power of
attorney with respect to any of the Shares, deposit any of the
Shares into a voting trust or enter into any agreement (other
than this Agreement), arrangement, or understanding with any
person, directly or indirectly, to vote, grant any proxy, or give
instructions with respect to the voting of any of the Shares.
Shareholder shall retain at all times the right to vote the
Shares in Shareholder's sole discretion on all matters other than
those set forth in this Paragraph 2 that are presented for a vote
to the Shareholders of Company generally.
3. Agreement to Vote the Shares. In the event that May
or its designee is unable to exercise the power and authority
granted in Paragraph 2 for any reason, at May's written request
Shareholder shall vote all of the Shares (i) in favor of the
Merger Agreement, as amended from time to time, and the Merger or
any transactions contemplated by the Merger Agreement at any
stockholders meetings of Company held to consider the Merger
Agreement, (ii) against any other proposal for any
recapitalization, merger, sale of assets, or other business
combination between Company and any person or entity other than
May or which would result in any of the conditions to May's
obligations under the Merger Agreement not being fulfilled, and
(iii) as otherwise necessary or appropriate to enable May to
consummate the transactions contemplated by the Merger Agreement.
4. Manner of Voting. The Shares may be voted pursuant to
this Agreement in person, by proxy, by written consent, or in any
other manner permitted by applicable law.
5. No Other Voting Agreements or Voting Trusts.
Shareholder represents, warrants, and covenants that (i)
Shareholder is not a party to any voting agreement (other than
this Agreement), voting trust, or other agreement for voting
control or other like agreement involving any of the Shares and
(ii) during the term of this Agreement, Shareholder will not
become a party to any such agreement or trust.
6. No Proxy Solicitations. Shareholder will not, nor
will Shareholder permit any entity under his control to, directly
or indirectly (i) solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under
the 0000 Xxx) in opposition to or competition with the
consummation of the Merger, (ii) solicit, encourage, initiate, or
otherwise facilitate any inquiries or the making of any proposal
or offer with respect to any, merger, consolidation, tender
offer, exchange offer, sale of a material portion of the assets
and business of Company (whether in one or more transactions),
sale of shares of the capital stock or debt securities of
Company, restructuring, recapitalization, or similar transaction
involving Company or any division or operating principal business
unit of Company (whether in one or more transactions) (an
"Acquisition Proposal") or engage in any negotiation concerning,
or provide any confidential information or data to, or have any
discussions with any person relating to, an Acquisition Proposal,
(iii) become a member of a "group" (as such term is used in
Section 13(d) of the 0000 Xxx) with respect to any voting
securities of Company for the purpose of opposing or competing
with the consummation of the Merger, or (iv) take any action that
would prevent, burden, or materially delay the consummation of
the transactions contemplated by this Agreement or by the Merger
Agreement. Shareholder shall immediately cease and cause to be
terminated any activities, discussions, or negotiations with
respect to any of the foregoing. Notwithstanding any of the
foregoing, if Shareholder is a director of the Company,
Shareholder may, without limitation, exercise his fiduciary
duties as a director of the Company, including engaging in the
activities described in clauses (x) and (y) of Section 6.2(a),
and in Section 6.2(b), of the Merger Agreement in Shareholder's
capacity as a director of the Company, but only to the extent
expressly permitted by Sections 6.2(a) and 6.2(b) of the Merger
Agreement.
7. Transfer and Encumbrance. Shareholder shall tender
the Shares pursuant to the Offer. Shareholder shall not
otherwise transfer, sell, offer, pledge, or otherwise dispose of
or encumber any of the Shares during the period commencing on
date of this Agreement and ending on the earlier of (i) the
effective date of the Merger or (ii) the date this Agreement is
terminated.
8. Additional Purchases. During the period commencing on
the date of this Agreement and ending on the earlier of (i) the
effective date of the Merger or (ii) the date this Agreement is
terminated, Shareholder shall not, except pursuant to a stock
option granted to Shareholder by the Company, (a) purchase,
exercise options to acquire, or otherwise acquire beneficial
ownership of any shares of the Common Stock ("New Shares"), or
(b) voluntarily acquire the right to vote or share in the voting
of any shares of the Common Stock other than the Shares. If
Shareholder acquires or otherwise acquires the beneficial
ownership of any New Shares, 90% of those New Shares shall be
subject to the terms of this Agreement and for all purposes shall
be and constitute a portion of the Shares.
9. Adjustments to Prevent Dilution. In the event of a
stock dividend or distribution, or any change in the Common Stock
by reason of any stock dividend, split-up, recapitalization,
combination, or the exchange of shares, the term "Shares" shall
be deemed to refer to and include the Shares as well as all such
stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged.
10. Option to Purchase Shares.
x. Xxxxx of Option. Subject to Shareholder's
obligation to tender the Shares in accordance with Section
7 hereof, Shareholder hereby irrevocably grants to May or
its designee an option (the "Option") to purchase in cash
all of the Shares at the purchase price per share as set
forth in the Merger Agreement (the "Exercise Price")
(subject to adjustment pursuant to Paragraph 9 above) for
each of the Shares purchased.
b. Exercise of Option.
i. The Option may be exercised by May or its
designee, in whole and not in part, at any time, or
from time to time, from the later of (A) the date the
Offer is commenced, and (B) the expiration or early
termination of the applicable waiting period under the
HSR Act, and thereafter as long as the Merger
Agreement remains in existence, but in no event later
than October 31, 2000.
ii. To exercise the Option, May or its designee
shall send a written notice to Shareholder of its
exercise of the Option (the "Option Notice"),
specifying the place, time, and date of the closing of
such purchase (the "Closing"), which date shall not be
less than two business days nor more than five
business days from the date of the Option Notice.
iii. At the Closing,
(A) Shareholder shall deliver to May or its
designee all of the Shares by delivery of a
certificate or certificates evidencing the Shares
duly endorsed or with executed blank stock power
attached, in either event with signature
guaranteed such that ownership of the Shares may
be registered for transfer on the books of
Company, and
(B) in exchange therefor, May will pay
Shareholder by wire transfer of immediately
available funds (to such account at such bank as
Shareholder shall direct) the Exercise Price
multiplied by the number of the Shares.
11. No Third-Party Beneficiary Rights. No provision of
this Agreement is intended to nor shall it be interpreted to
provide or create any third-party beneficiary rights or any other
rights of any kind in any person or entity who is not a Party and
all provisions of this Agreement are personal to and solely
between the Parties.
12. Further Assurances. Each Party shall do and perform
or cause to be done and performed all such further acts and
things and shall execute and deliver all such other agreements,
certificates, instruments, or documents as any other Party shall
reasonably request from time to time in order to carry out the
intent and purposes of this Agreement. No Party shall voluntarily
undertake any course of action inconsistent with satisfaction of
the requirements applicable to such Party as set forth in this
Agreement, and each Party shall promptly do all acts and take all
measures as may be appropriate or necessary to enable such Party
to perform, as early as practicable, the obligations required to
be performed by such Party under this Agreement.
13. Injunctive Relief. The Parties acknowledge that it is
impossible to measure in money the damages that will accrue to
one or more of them by reason of the failure of either of them to
abide by the provisions of this Agreement, that every such
provision is material, and that in the event of any such failure,
the other Party will not have an adequate remedy at law or
damages. Therefore, if any Party shall institute any action or
proceeding to enforce the provisions of this Agreement, in
addition to any other relief, the court in such action or
proceeding may grant injunctive relief against any Party found to
be in breach or violation of this Agreement, as well as or in
addition to any remedies at law or damages, and such Party waives
the claim or defense in any such action or proceeding that the
Party bringing such action has an adequate remedy at law, and
such Party shall not argue or assert in any such action or
proceeding the claim or defense that such remedy at law exists.
No Party shall seek and each Party shall waive any requirement
for, the securing or posting of a bond in connection with the
other Party seeking or obtaining such equitable relief.
14. Court Modification. Should any portion of this
Agreement be declared by a court of competent jurisdiction to be
unreasonable, unenforceable, or void for any reason or reasons,
the involved court shall modify the applicable provision(s) of
this Agreement so as to be reasonable or as is otherwise
necessary to make this Agreement enforceable and valid and to
protect the interests of the Parties intended to be protected by
this Agreement to the maximum extent possible.
15. Facsimile Transmission and Counterparts. This
Agreement may be executed by facsimile transmission and in one or
more counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one
and the same Agreement.
16. Notices. All notices, requests, demands, and other
communications under this Agreement ("Notices") shall be in
writing and shall be delivered (i) personally, (ii) by first
class mail, certified, return receipt requested, postage prepaid,
(iii) by overnight courier, with one acknowledged receipt, or
(iv) by facsimile transmission followed by delivery by first
class mail or by overnight courier, in the manner provided for in
this Paragraph 16 and properly addressed as follows:
If to May to:
The May Department Stores Company
000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
The May Department Stores Company
000 Xxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
If to Shareholder:
(Item 4 on Attached Schedule)
or to such other address or addresses as a Party to this
Agreement may indicate to the other Party in the manner provided
for in this Paragraph 16. Notices given by mail and notices given
by overnight courier shall be deemed effective and complete upon
delivery; notices by facsimile transmission shall be deemed
effective upon receipt, unless receipt thereof shall be disputed
in which case receipt shall be deemed effective as of the
effective date of the follow-up notice called for by this
Paragraph 16 with respect to such facsimile transmitted notice;
and notices delivered personally shall be deemed effective and
complete at the time of the delivery of the notice and the
obtaining of a signed receipt for the notice, unless a Party
shall refuse to provide a signed receipt, in which case the
notice shall be effective upon the completion of personal
delivery of the notice in such a way as to insure the ability to
evidence such personal delivery.
17. Other Agreements.
(a) This Agreement supersedes all prior agreements or
understandings of the Parties on the subject matter of this
Agreement. There are no representations, warranties, or
agreements, whether express or implied, or oral or written, with
respect to the subject matter of this Agreement, except as set
forth in this Agreement. This Agreement (i) shall not be modified
by any oral agreement, either express or implied, and all
amendments or modifications of this Agreement shall be in writing
and be signed by all of the Parties, and (ii) shall be binding on
and shall inure to the benefit of the Parties and their
respective heirs, legal representatives, successors, and
permitted assigns, if any.
(b) None of the rights, duties, or obligations under this
Agreement of any Party may be assigned, delegated, or transferred
expressly, by operation of law, merger, or otherwise, without the
prior written consent of the other Party.
(c) The paragraph headings in this Agreement are for the
purpose of convenience only and shall not limit or otherwise
affect any of the terms of this Agreement.
(d) Should any Party be in default under or breach of any
of the covenants or agreements contained in this Agreement, or in
the event a dispute shall arise as to the meaning of any term of
this Agreement, the defaulting or nonprevailing Party shall pay
all costs and expenses, including reasonable attorneys' fees, of
the other Party that may arise or accrue from enforcing this
Agreement, securing an interpretation of any provision of this
Agreement, or in pursuing any remedy provided by law whether such
remedy is pursued or interpretation is sought by the filing of a
lawsuit, an appeal, or otherwise.
(e) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, which
internal laws exclude any provision or interpretation of such
laws that would call for, or permit, the application of the laws
of any other state or jurisdiction, and any dispute arising
therefrom and the remedies available shall be determined solely
in accordance with such internal laws.
This Agreement and any Proxy granted pursuant to this
Agreement shall terminate upon the first to occur of the
following events:
i. the successful consummation of the Merger;
ii. the written agreement of all of the Parties to
terminate this Agreement; or
iii. the termination of the Merger Agreement.
Where the context requires, the singular shall include the
plural, the plural shall include the singular, and any gender
shall include all other genders.
Recitals A through D, inclusive, are by this reference
incorporated into and made a part of this Agreement.
IN WITNESS WHEREOF, each of the Parties has executed this
Agreement on or as of the date of this Agreement.
THE MAY DEPARTMENT STORES COMPANY,
a Delaware Corporation
By: __________________________________
Its:_______________________________
[SHAREHOLDER]
(Item 5 on Attached Schedule)
By: __________________________________
SCHEDULE TO SHAREHOLDER AGREEMENT
Item 1 Item 2 Item 3 Item 4 Item 5
Total 90% of Notice
Shareholder Shares Shares Address Signature
Clipper/Merchant
Partners, L.P. 1,349,995 1,214,996 Clipper/Merchant Partners, Xxxxxx X. Xxxxx
L.P.
c/o Xxxxxx X. Xxxxx
The Clipper Group, L.P.
000 Xxxxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Clipper Equity
Partners I, L.P. 1,013,884 912,496 Clipper Equity Partners I, Xxxxxx X. Xxxxx
L.P.
c/o Xxxxxx X. Xxxxx
The Clipper Group, L.P.
000 Xxxxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Clipper/Merban, L.P. 1,351,845 1,216,661 Clipper/Merban, L.P. Xxxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxx
The Clipper Group, L.P.
000 Xxxxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Clipper Capital
Associates, L.P. 81,324 73,192 Clipper Capital Associates, Xxxxxx X. Xxxxx
L.P.
c/o Xxxxxx X. Xxxxx
The Clipper Group, L.P.
000 Xxxxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Clipper/European
Re, L.P. 675,923 608,331 Clipper/European Re, L.P. Xxxxxx X. Xxxxx
c/o Xxxxxx X. Xxxxx
The Clipper Group, L.P.
000 Xxxxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Xxxx Erlbaum 665,496 598,946 Xxxx Erlbaum Xxxx Erlbaum
00 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Erlbaum Family L.P. 112,331 101,098 Erlbaum Family L.P. Gary Erlbaum,
c/o Xxxx Erlbaum President of
00 X. Xxxxxxxxx Xxxxxx its General
Xxxxxxx, XX 00000 Partner
Facsimile: (000) 000-0000
Trust of
S.H. Erlbaum 121,161 109,045 Trust of S.H. Erlbaum Xxxx Erlbaum,
c/o Xxxx Erlbaum as Trustee
00 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxx Erlbaum Trust 253,349 228,014 Xxxx Erlbaum Trust Xxxx Erlbaum,
c/o Xxxx Erlbaum as Trustee
00 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxxx Erlbaum 222,289 200,060 Xxxxxxx Erlbaum Xxxxxxx Erlbaum
MCE Family Limited
Partnership 100,372 90,335 MCE Family Limited
Partnership Xxxxxxx X. Erlbaum,
c/o Xxxxxxx Erlbaum General Partner
Xxxxxx Erlbaum 1,555,999 1,400,399 Xxxxxx Erlbaum Xxxxxx Erlbaum
00 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxx Xxxx 7,369 6,632 Xxxxxx Xxxx Xxxxxx Xxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxxxx 24,685 22,217 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx
000 Xxxx Xxxx Xxxxxx,
Xxxxx 000
Xxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Grantor Retained
Annuity Trust 119,606 107,645 Grantor Retained Annuity Grantor Retained
of Xxxxxx X. Trust of Xxxxxx X. Annuity Trust of
Sidewater Xxxxxxxxx Xxxxxx J.
c/o Xxxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxxx X.
000 Xxxx Xxxx Xxxxxx, Xxxxxxxxx, as
Xxxxx 000 Xxxxxxx
Xxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
SPWJ Associates,
L.P. 119,606 107,645 SPWJ Associates, L.P. SPWJ Associates,L.P.
c/o Xxxxxx Xxxxxxxxx Xxxxxx X. Xxxxxxxxx,
000 Xxxx Xxxx Xxxxxx, General Partner
Xxxxx 000
Xxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxx Xxxxxxxxx
Trust 21,946 19,751 Xxxxx Xxxxxxxxx Trust Xxxxx Xxxxxxxxx
c/o Xxxxxx Xxxxxxxxx Trust, Xxxxxx
000 Xxxx Xxxx Xxxxxx, Xxxxxxxxx, as
Xxxxx 000 Xxxxxxx
Xxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxx Xxxxxxxxx
Trust 308,303 277,473 Xxxxx Xxxxxxxxx Trust Xxxxx Xxxxxxxxx
c/o Xxxxxx Xxxxxxxxx Trust, Xxxxxx
000 Xxxx Xxxx Xxxxxx, Xxxxxxxxx, as
Xxxxx 000 Xxxxxxx
Xxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Xxxxx Xxxxxxxxx
Trust 21,946 19,751 Xxxxx Xxxxxxxxx Trust Xxxxx Xxxxxxxxx
c/o Xxxxxx Xxxxxxxxx Trust, Xxxxxx
000 Xxxx Xxxx Xxxxxx, Xxxxxxxxx, as
Xxxxx 000 Xxxxxxx
Xxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
