1
EXHIBIT 99 (d)(2)
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 ________________("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:
2
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 _________________________________ shares of the
Common Stock, 90% (________ 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.
2
3
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.
3
4
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.
4
5
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:
5
6
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:
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.
6
7
(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.
7
8
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]
By:
----------------------------------------
