Exhibit 99.2
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is entered into as of June 28, 2007, by
and among Brands Holding Limited, a private company limited by shares
incorporated in England ("Parent"), EWI Acquisition, Inc., a Delaware
corporation ("Merger Sub") and The Estate of Xxxxxx X Xxxxxxxx (the
"Stockholder").
W I T N E S S E T H:
WHEREAS, as of the date of this Agreement, the Stockholder beneficially owns, in
the aggregate, 515,941 shares of Common Stock, par value $0.002 per share (the
"Common Stock"), of Everlast Worldwide Inc., a Delaware corporation (the
"Company");
WHEREAS, concurrently herewith, the Company, Parent and Merger Sub are entering
into an Agreement and Plan of Merger, dated as of this date, as the same may be
amended (the "Merger Agreement"), pursuant to which Merger Sub will merge with
and into the Company and the Company will continue its existence as the
surviving corporation (the "Merger"), and each share of Common Stock will be
converted into the right to receive cash in accordance with the terms of the
Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and Merger Sub to enter
into the Merger Agreement, and as an inducement and in consideration therefor,
Parent and Merger Sub have required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained in this
Agreement, the parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1
DEFINED TERMS
For purposes of this Agreement, terms used in this Agreement that are defined in
the Merger Agreement but not in this Agreement shall have the respective
meanings ascribed to them in the Merger Agreement.
SECTION 1.2
OTHER DEFINITIONS
For purposes of this Agreement:
(a) "Company Options" means options to acquire Common Stock granted to the
Stockholder by the Company.
(b) "New Shares" means any shares of capital stock of the Company (other than
Owned Shares) over which the Stockholder acquires beneficial ownership at
any time from and after the date of this Agreement through the termination
of the Voting Period (including Option Shares).
(c) "Option Shares" means any shares of Common Stock issued or issuable upon
the exercise of Company Options.
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(d) "Owned Shares" means all of the shares of Common Stock beneficially owned
by the Stockholder as of the date of this Agreement. The Owned Shares
consist of: 515,941 shares of Common Stock held by the Stockholder. In the
event of a stock dividend or distribution, or any change in the Common
Stock by reason of any stock dividend or distribution, split-up,
recapitalization, combination, exchange of shares or the like, the "Owned
Shares" shall be deemed to refer to and include the Owned Shares (as
defined in the first sentence of this paragraph) as well as all stock
dividends and distributions and any securities into which or for which any
or all of those Owned Shares may be changed or exchanged or which are
received in the transaction.
(e) "Permitted Transferee" means, with respect to the Stockholder, any of the
following persons: (i) the beneficiaries of the Stockholder and (ii) any
charitable foundation or similar charitable organization founded and
controlled by the Stockholder (and which remains under the control of the
Stockholder, as applicable).
(f) "Representative" means, with respect to any particular person, any
director, officer, employee, accountant, consultant, legal counsel,
investment banker, advisor, agent or other representatives of that person.
(g) "Transfer" means sell, transfer, tender, pledge, encumber, hypothecate,
assign or otherwise dispose, by operation of law or otherwise. For
purposes of this Agreement, the Transfer of any Company Option shall be
deemed a Transfer of the shares issuable upon the exercise thereof.
(h) "Voting Period" means the period from and including the date of this
Agreement through and including the earlier to occur of (x) the Effective
Time and (y) the termination of the Merger Agreement in accordance with
the terms thereof.
ARTICLE II
VOTING AGREEMENT AND IRREVOCABLE PROXY
SECTION 2.1
AGREEMENT TO VOTE
(a) The Stockholder hereby agrees that, during the Voting Period, it shall
vote or execute consents, as applicable, with respect to the Owned Shares
and any New Shares beneficially owned by the Stockholder as of the
applicable record date (or cause to be voted or a consent to be executed
with respect to the Owned Shares and any New Shares beneficially owned by
the Stockholder as of the applicable record date) in favor of the approval
of the Merger Agreement, the Merger and the Transactions at any meeting
(or any adjournment or postponement thereof) of, or in connection with any
proposed action by written consent of, the holders of any class or classes
of capital stock of the Company at or in connection with which any of such
holders vote or execute consents with respect to any of the foregoing
matters.
(b) The Stockholder hereby agrees that, during the Voting Period, the
Stockholder shall vote or execute consents, as applicable, with respect to
the Owned Shares and any New Shares beneficially owned by the Stockholder
as of the applicable record date (or cause to be voted or a consent to be
executed with respect to the Owned Shares and any New Shares beneficially
owned by the Stockholder as of the applicable record date) against each of
the matters set forth in clauses (i) or (ii) below at any meeting (or any
adjournment or postponement thereof) of, or in connection with any
proposed action by written consent of, the holders of any class or classes
of capital stock of the Company at or in connection with which any of such
holders vote or execute consents with respect to any of the following
matters:
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(i) any action, proposal, transaction or agreement involving the
Company or any of its subsidiaries that would reasonably be
expected to, in any material respect, prevent, impede,
frustrate, interfere with, delay, postpone or adversely affect
the Merger or the other Transactions; or
(ii) any Acquisition Proposal, other than an Acquisition Proposal
made by Parent.
(c) Any vote required to be cast or consent required to be executed pursuant
to this Section 2.1 shall be cast or executed in accordance with the
applicable procedures relating thereto so as to ensure that it is duly
counted for purposes of determining that a quorum is present (if
applicable) and for purposes of recording the results of that vote or
consent. Nothing contained in this Section 2.1shall require the
Stockholder to vote or execute any consent with respect to any Option
Shares on or not issued upon the exercise of a Company Option on or prior
to the applicable record date for that vote or consent.
(d) Except as set forth in clauses (a) and (b) of this Section 2.1, the
Stockholder shall not be restricted from voting in favor of, against or
abstaining with respect to any matter presented to the stockholders of the
Company. In addition, nothing in this Agreement shall give Parent the
right to vote any Owned Shares at any meeting of the stockholders other
than as provided in this Section 2.1.
SECTION 2.2
GRANT OF IRREVOCABLE PROXY
The Stockholder hereby irrevocably appoints Parent as the Stockholder's proxy
and attorney-in-fact, with full power of substitution and resubstitution, to
vote or execute consents during the Voting Period, with respect to the Owned
Shares and any New Shares beneficially owned by the Stockholder, solely in
respect of the matters described in, and in accordance with, Section 2.1. This
proxy is given to secure the performance of the duties of the Stockholder under
this Agreement. The Stockholder shall not directly or indirectly grant any
person any proxy (revocable or irrevocable), power of attorney or other
authorization with respect to any of the Owned Shares or New Shares that is
inconsistent with Sections 2.1 and 2.2.
SECTION 2.3
NATURE OF IRREVOCABLE PROXY
The proxy and power of attorney granted pursuant to Section 2.2 by the
Stockholder shall be irrevocable during the Voting Period, shall be deemed to be
coupled with an interest sufficient in law to support an irrevocable proxy and
shall revoke any and all prior proxies granted by the Stockholder, and the
Stockholder acknowledges that the proxy constitutes an inducement for Parent and
Merger Sub to enter into the Merger Agreement. The power of attorney granted by
the Stockholder is a durable power of attorney and shall survive the bankruptcy,
death or incapacity of the Stockholder. The proxy and power of attorney granted
hereunder shall terminate automatically at the expiration of the Voting Period.
ARTICLE III
COVENANTS
SECTION 3.1
TRANSFER RESTRICTIONS
The Stockholder agrees that it shall not, and shall not permit any person,
directly or indirectly, to:
(a) Transfer any or all of the Owned Shares or New Shares beneficially owned
by the Stockholder; provided that the foregoing shall not prevent (i) the
Transfer of Owned Shares or New Shares to any Permitted Transferee who
executes and delivers to Parent an agreement to be bound by the terms of
this Agreement to the same extent as the Stockholder, or (ii) the
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conversion of the Owned Shares and New Shares into the right to receive
Merger Consideration pursuant to the Merger in accordance with the terms
of the Merger Agreement; or
(b) deposit any Owned Shares or New Shares beneficially owned by the
Stockholder in a voting trust or subject any of such Owned Shares or New
Shares beneficially owned by the Stockholder to any arrangement or
agreement with any person (other than Parent) with respect to the voting
or the execution of consents with respect to any such Owned Shares or New
Shares that would reasonably be expected to restrict the Stockholder's
ability to comply with and perform the Stockholder' s covenants and
obligations under this Agreement.
SECTION 3.2
NO SHOP OBLIGATIONS OF THE STOCKHOLDER
The Stockholder covenants and agrees with Parent that, during the Voting Period,
the Stockholder shall not and shall not authorize any of its Representatives to,
directly or indirectly, (i) initiate, solicit, encourage, or knowingly
facilitate any inquiry, proposal or offer, or the making, submission or
reaffirmation of any inquiry, proposal or offer (including any proposal or offer
to the Company's stockholders), that constitutes or would reasonably be expected
to lead to any Acquisition Proposal, or (ii) engage in any discussions or
negotiations concerning an Acquisition Proposal.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent and Merger Sub as
follows:
SECTION 4.1
AUTHORIZATION
The Stockholder has all legal capacity, power and authority to execute and
deliver this Agreement and to perform the Stockholder's obligations hereunder.
This Agreement has been duly executed and delivered by the Stockholder and
constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms.
SECTION 4.2
OWNERSHIP OF SHARES
The Stockholder is the sole beneficial owner of all of the Stockholder's Owned
Shares and Option Shares and has, or will have at the time of any vote with
respect to the matters contemplated by ARTICLE II, the sole power to vote (or
cause to be voted or consents to be executed) and to dispose of (or cause to be
disposed of) all of such Owned Shares and, upon their issuance, Option Shares.
The Stockholder does not own or hold any right to acquire any additional shares
of any class of capital stock of the Company or other securities of the Company
or any interest therein or any voting rights with respect to any securities of
the Company. None of the Stockholder's Owned Shares and Option Shares are
subject to any voting trust agreement or other contract, agreement, arrangement,
commitment or understanding to which the Stockholder is a party restricting or
otherwise relating to the voting or Transfer of the Stockholder's Owned Shares
or Option Shares. The Stockholder has good and valid title to the Stockholder's
Owned Shares and Company Options, free and clear of any and all Encumbrances.
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SECTION 4.3
NO CONFLICTS
Except (a) for a filing of an amendment to a Schedule 13D or Schedule 13G, and
(b) for a filing of a Form 4 or Form 5 as required by the Exchange Act, (i) no
filing with any Governmental Entity, and no authorization, consent or approval
of any other person is necessary for the execution of this Agreement by the
Stockholder or the performance by the Stockholder of its obligations hereunder
and (ii) none of the execution and delivery of this Agreement by the Stockholder
or the performance by the Stockholder of its obligations hereunder shall (A)
result in, give rise to or constitute a violation or breach of or a default (or
any event which with notice or lapse of time or both would become a violation,
breach or default) under any of the terms of any agreement or other instrument
to which the Stockholder is a party or by which the Stockholder or any of the
Stockholder's Owned Shares is bound, or (B) violate any Law or Order applicable
to the Stockholder, except for any of the foregoing as could not reasonably be
expected to impair the Stockholder's ability to perform his obligations under
this Agreement in any material respect.
SECTION 4.4
RELIANCE BY PARENT AND MERGER SUB
The Stockholder understands and acknowledges that Parent and Merger Sub are
entering into the Merger Agreement in reliance upon the execution and delivery
of this Agreement by the Stockholder and the agreement by the Stockholder herein
to perform the Stockholder's obligations hereunder and comply with the terms
hereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Each of Parent and Merger Sub hereby represent and warrant to the Stockholder
that (a) it has all legal capacity, power and authority to execute and deliver
this Agreement and to perform his obligations hereunder and (b) this Agreement
has been duly executed and delivered by it and constitutes a legal, valid and
binding obligation of the party, enforceable against it in accordance with the
terms of this Agreement.
ARTICLE VI
TERMINATION
This Agreement shall terminate upon the expiration of the Voting Period;
provided that Section 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.12 and 7.13 shall survive
termination of this Agreement. Notwithstanding the foregoing, termination of
this Agreement shall not prevent any party from seeking any remedies (at law or
in equity) against any other party for that party's breach of any of the terms
of this Agreement prior to the date of termination.
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ARTICLE VII
MISCELLANEOUS
SECTION 7.1
APPRAISAL RIGHTS
The Stockholder hereby waives any rights of appraisal or rights to dissent from
the Merger or the approval of the Merger Agreement that the Stockholder may have
under applicable Law and shall not permit any such rights of appraisal or rights
of dissent to be exercised with respect to any Owned Shares or any New Shares.
SECTION 7.2
FURTHER ACTIONS
The Stockholder agrees that the Stockholder shall take any further action and
execute any other documents or instruments as may be necessary to effectuate the
intent of this Agreement.
SECTION 7.3
FEES AND EXPENSES
Except as otherwise expressly set forth in this Agreement, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring the cost or expense
whether or not the Merger is consummated.
SECTION 7.4
AMENDMENTS, WAIVERS, ETC
This Agreement may be amended by the parties at any time. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties. Any party hereto may (a) extend the time for the performance of any of
the obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (c) subject to the requirements of
applicable Law, waive compliance with any of the agreements or conditions
contained herein. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound thereby. The
failure of any party to assert any rights or remedies shall not constitute a
waiver of such rights or remedies.
SECTION 7.5
NOTICES
All notices, requests, claims, instructions, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by facsimile (provided that
the facsimile is promptly confirmed by telephone confirmation thereof) or by
internationally-recognized overnight courier to the respective parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) If to the Stockholder, addressed to:
The Estate of Xxxxxx X Xxxxxxxx c/o
Everlast Worldwide Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile:x0 000 000 0000
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(b) if to Parent or Merger Sub, addressed to:
Brand Holdings Limited
Unit A, Brook Park, Meadow Lane
Shirebrook, Mansfield XX00 0XX
Xxxxxx Xxxxxxx
Attention: Company Secretary
Facsimile: x00 000 000 0000
with a copy to (which shall not constitute notice):
Freshfields Bruckhaus Xxxxxxxx Freshfields Bruckhaus Xxxxxxxx LLP
00 Xxxxx Xxxxxx 520 Madison Avenue, 34th Floor
London, EC4Y 1HS Xxx Xxxx, XX 00000
UNITED KINGDOM UNITED STATES OF AMERICA
Attention: Xxxxx Xxxx Attention: Xxxxxxx X. Xxxxxx, Esq.
Attention: Xxxxx Xxxxxx Fax: x0 000 000 0000
Fax:+ 00 000 000 0000
or to such other address as any party shall specify by written notice so given,
and notice shall be deemed to have been delivered as of the date so
telecommunicated or personally delivered.
SECTION 7.6
HEADINGS; TITLES
Headings and titles of the Articles and Sections of this Agreement are for the
convenience of the parties only, and shall be given no substantive or
interpretative effect whatsoever.
SECTION 7.7
SEVERABILITY
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the substance of the transactions contemplated
hereby is not affected in any manner adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the fullest extent possible.
SECTION 7.8
ENTIRE AGREEMENT
This Agreement (together with the Merger Agreement, to the extent referred to in
this Agreement) and any documents delivered by the parties in connection
herewith constitute the entire agreement among the parties with respect to the
subject matter of this Agreement and supersede all prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof.
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SECTION 7.9
ASSIGNMENT; BINDING EFFECT; NO THIRD PARTY BENEFICIARIES; FURTHER ACTION
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties (whether by operation of law or
otherwise) without the prior written consent of the other parties and assignment
without such consent shall be void, except that each of Parent and/or Merger Sub
may assign, in its sole discretion, any or all of its rights, interests and
obligations under this Agreement to any of their respective Affiliates. This
Agreement shall be binding upon and shall inure to the benefit of Parent and
Merger Sub and their respective successors and assigns and shall be binding upon
the Stockholder and its heirs, executors and administrators. This Agreement
shall be binding upon and inure solely to the benefit of each party hereto, and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other person (other than, in the case of Parent and Merger Sub, their
respective successors and assigns and, in the case of the Stockholder, its
heirs, executors and administrators) any rights, benefits or remedies of any
nature whatsoever under or by reason of this Agreement.
SECTION 7.10
GOVERNING LAW
This Agreement shall be governed by, construed and enforced in accordance with,
the laws of the State of New York, without regard to principles of conflict of
laws thereof. Each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of the United States District Court for the Southern
District of New York or any court of the State of New York located in such
district in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (b) agrees that it will not attempt
to deny or defeat such personal jurisdiction or venue by motion or other request
for leave from any such court and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than such courts sitting in the State of New York.
SECTION 7.11
ENFORCEMENT OF AGREEMENT; SPECIFIC PERFORMANCE
The parties agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed by the Stockholder in
accordance with their specific terms or were otherwise breached by the
Stockholder. It is accordingly agreed that Parent and Merger Sub shall be
entitled to an injunction or injunctions, without the requirement of posting any
bond or furnishing other security, to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in the state
courts of the State of New York sitting in the City of New York or any court of
the United States located in the City of New York, this being in addition to any
other remedy to which such party is entitled at law or in equity.
SECTION 7.12
COUNTERPARTS; FACSIMILES
This Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement. This Agreement or any counterpart may be executed and
delivered by facsimile copies, each of which shall be deemed an original.
SECTION 7.13
WAIVER OF JURY TRIAL
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
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THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
BRANDS HOLDINGS LIMITED
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Group Financial Director
EWI ACQUISITION, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman, CEO and President
THE ESTATE OF XXXXXX X XXXXXXXX
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Trustee
