EXHIBIT 4
STOCK VOTING AGREEMENT
STOCK VOTING AGREEMENT, dated as of August 31, 2005, (this
"AGREEMENT"), among the undersigned (the "STOCKHOLDER REPRESENTATIVE"), Texas
Clothing Holding Corp., a Delaware corporation ("PARENT"), and Haggar Corp., a
Nevada corporation (the "COMPANY").
WHEREAS, concurrently herewith, Parent, Nevada Clothing Acquisition
Corp., a Nevada corporation and a wholly owned subsidiary of Parent ("MERGER
SUB"), and the Company are entering into an Agreement and Plan of Merger of even
date herewith (the "MERGER AGREEMENT"), pursuant to which Merger Sub will merge
with and into Company (the "MERGER"), which Merger Agreement has been approved
by the Board of Directors of the Company. Each capitalized term used herein, and
not otherwise defined herein, shall have the meaning set forth in the Merger
Agreement;
WHEREAS, the Stockholder Representative is a registered investment
advisor and has entered into investment advisory agreements with various persons
or entities (the "Owners") pursuant to which the Stockholder Representative has
the right to vote or dispose of 840,264 shares of common stock, $0.10 par value
per share, of the Company ("COMPANY COMMON STOCK") (the "EXISTING SHARES", and
together with any shares of Company Common Stock with respect to which the
Stockholder Representative shall obtain such rights after the date hereof and
prior to the termination of this Agreement whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or exchangeable
shares, or by means of purchase, dividend, distribution or otherwise,
hereinafter collectively referred to as the "SHARES"). References in this
Agreement to shares of Company Common Stock shall also be deemed to refer to the
associated right to purchase Series B Junior Participating Preferred Stock, par
value $0.10 per share, of the Company in accordance with the Company Rights
Agreement, as appropriate.
WHEREAS, Parent and Merger Sub are entering into the Merger Agreement
in reliance on and in consideration of the Stockholder Representative's
representations, warranties, covenants and agreements hereunder.
NOW, THEREFORE, in consideration of Parent and Merger Sub's execution
of the Merger Agreement and the mutual covenants and agreements herein contained
and other good and valuable consideration, and intending to be legally bound
hereby, it is agreed as follows:
1. VOTE.
AGREEMENT TO VOTE. The Stockholder Representative hereby
revokes any and all previous proxies granted by such
Stockholder Representative with respect to the Shares and
irrevocably agrees to vote, and otherwise act (including
pursuant to written consent) with respect to all of such
Shares (i) in favor of the approval of the Merger Agreement
(or any
amended version or versions thereof) and the Merger, and all
actions required in furtherance thereof, at any meeting or
meetings of the stockholders of the Company, and at any
adjournment, postponement or continuation thereof, at which
the Merger Agreement (or any amended version or versions
thereof) and the Merger are submitted for the consideration
and vote of the stockholders of the Company; (ii) against any
action or agreement that would result in a breach in any
respect of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger
Agreement or this Agreement; and (iii) except as otherwise
agreed to in writing in advance by Parent, against the
following actions (other than the Merger and the transactions
contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or
other business combination involving the Company or its
Subsidiaries; (B) a sale, lease or transfer of a material
amount of assets of the Company or its Subsidiaries; (C)(1)
any change in a majority of the persons who constitute the
board of directors of the Company; (2) any change in the
present capitalization of the Company or any amendment of the
Company's Articles of Incorporation or Bylaws; (3) any other
material change in the Company's corporate structure or
business; or (4) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay,
postpone or adversely affect in any material respect the
Merger and the transactions contemplated by the Merger
Agreement. Such Stockholder Representative shall not enter
into any agreement or understanding with any Person or entity
the effect of which would be inconsistent or violative of the
provisions and agreements contained in this Section 1. The
obligations of the Stockholder Representative under this
Section 1 shall remain in effect with respect to the Shares
until, and shall terminate upon, the earlier to occur of the
Effective Time or the termination of the Merger Agreement in
accordance with its terms. The Stockholder Representative
hereby agrees to execute such additional documents as Parent
may reasonably request to effectuate the foregoing.
1.2 IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, Stockholder Representative agrees to deliver to
Parent a proxy in the form attached hereto as EXHIBIT A (the
"PROXY"), which shall be irrevocable to the fullest extent
permissible by applicable law, with respect to the Shares.
2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
REPRESENTATIVE. The Stockholder Representative represents and warrants to Parent
as follows:
OWNERSHIP OF SHARES. On the date hereof, the Shares are all of
the Shares which the Stockholder Representative has the right
to vote and dispose of. Without limiting the generality of the
foregoing, the Stockholder Representative does not hold, and
has no knowledge that any of the Owners hold, any options,
warrants or other rights to purchase Company Common Stock. The
Stockholder Representative currently has voting power and
power to issue instructions with respect to the matters set
forth in Section 1 hereof, power of disposition, power of
conversion and power to agree to all of the matters set forth
in this Agreement, in each case with respect to all of the
Shares, with no limitations, qualifications or restrictions on
such rights, subject to (a) applicable securities laws and the
terms of this Agreement, and (b) the right of the Owner of
such Shares, to dispose of the
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Shares, and terminate the rights of the Stockholder
Representative upon 60 days prior written notice.
2.1 AUTHORITY; BINDING AGREEMENT. The Stockholder Representative
has the full legal right, power and authority to enter into
and perform all of its obligations under this Agreement. This
Agreement has been duly executed and delivered by the
Stockholder Representative and constitutes a legal, valid and
binding agreement of the Stockholder Representative,
enforceable in accordance with its terms, subject as to
enforceability, to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Neither the
execution and delivery of this Agreement nor the consummation
by the Stockholder Representative of the transactions
contemplated hereby will (i) violate, or require any consent,
approval or notice under, any provision of any judgment,
order, decree, statute, law, rule or regulation applicable to
the Stockholder Representative or, to the knowledge of the
Stockholder Representative the Shares or (ii) constitute a
violation of, conflict with or constitute a default under, any
contract, commitment, agreement, understanding, arrangement or
other restriction of any kind to which the Stockholder
Representative is a party or by which the Stockholder
Representative is bound, in each case the effect of which
would adversely affect the ability of the Stockholder
Representative to perform its obligations hereunder.
2.2 RELIANCE ON AGREEMENT. The Stockholder Representative
understands and acknowledges that Parent is entering into the
Merger Agreement in reliance upon the Stockholder
Representative's execution and delivery of this Agreement.
3. CERTAIN COVENANTS OF THE STOCKHOLDER REPRESENTATIVE. Except in
accordance with the provisions of this Agreement, the Stockholder Representative
agrees with, and covenants to, Parent as follows:
3.1 TRANSFER. Prior to the termination of this Agreement, except
as otherwise provided herein, the Stockholder Representative
shall not, unless otherwise instructed by the Owner, in
accordance with the applicable investment agreement with the
Stockholder Representative (i) transfer (which term shall
include, without limitation, for the purposes of this
Agreement, any sale, gift, pledge, assignment, encumbrance or
other disposition), whether directly or indirectly (including
by operation of law), or consent to any transfer of, any or
all of the Shares or any interest therein, except pursuant to
the Merger, (ii) grant any proxies, power-of-attorneys or
other authorizations or consents with respect to the Shares,
deposit the Shares into a voting trust or enter into a voting
agreement or similar arrangement with respect to the Shares,
(iii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all such
Shares or any interest therein; or (iv) request that or
solicit any of the Owners of the Shares to take any action
inconsistent with covenants made by the Stockholder
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Representative pursuant to this Agreement or to terminate the
investment advisory agreement between the Stockholder
Representative and any of the Owners.
3.2 STOP TRANSFER. The Stockholder Representative hereby agrees
with, and covenants to, each other party hereto, that such
Stockholder Representative shall not request that the Company
register the transfer (book entry or otherwise) of any
certificate or uncertified interest representing any of its
Shares, unless such transfer is made in compliance with this
Agreement, or unless otherwise instructed by the Owners.
3.3 NOTIFICATIONS. The Stockholder Representative shall, while
this Agreement is in effect, notify Parent promptly, but in no
event later than two business days, of (a) the number of any
additional shares of Company Common Stock acquired by the
Stockholder Representative after the date hereof; and (b) if
any Owner shall terminate the rights of the Stockholder
Representative with respect to such Shares.
3.4 WAIVER OF CLAIMS. The Stockholder Representative agrees that
it will not bring, commence, institute, maintain, prosecute,
participate in or voluntarily aid any action, claim, suit or
cause of action, in law or inequity, in any court or before
any governmental entity, which (i) challenges the validity of
or seeks to enjoin the operation of any provision of this
Agreement or (ii) alleges that the execution and delivery of
this Agreement by the Stockholder Representative, either alone
or together with the other Company voting agreements and
proxies to be delivered in connection with the execution of
the Merger Agreement, or the approval of the Merger Agreement
by the Board of Directors of the Company, breaches any
fiduciary duty of the Board of Directors of the Company or any
member thereof; PROVIDED, that the Stockholder Representative
may defend against, contest or settle any such action, claim
suit or cause of action brought against Stockholder
Representative or any of its officers or directors that
relates solely to the Stockholder Representative's or such
officer's or director's capacity as a director or officer of
the Company.
4. EFFECT OF PURPORTED TRANSFER. The Company agrees with, and
covenants to, each other party hereto that the Company shall not register the
transfer (book entry or otherwise) of any certificate or uncertified interest
representing any of the Shares, unless such transfer is made in compliance with
this Agreement. The parties hereto agree that any transfer of the Shares made
other than in compliance with this Agreement shall be null and void. Any such
transfer shall convey no interest in any of the Shares purported to be
transferred, and the transferee shall not be deemed to be a stockholder of the
Company nor entitled to receive a new share certificate or any rights, dividends
or other distributions on or with respect to such Shares.
5. TERMINATION. This Agreement shall terminate, and neither
Parent nor the Stockholder Representative shall have any rights or obligations
hereunder and this Agreement shall become null and void and have no effect on
the earlier of (i) the Effective Time or (ii) upon the termination of the Merger
Agreement in accordance with its terms.
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6. ACTION IN THE STOCKHOLDER REPRESENTATIVES' CAPACITY ONLY.
Neither the Stockholder Representative nor any of its officers, directors or
representatives, including but not limited to Xxxxxx X. Xxxx (the
"Representatives"), makes any agreement or understanding herein as director or
officer of the Company. The Stockholder Representative signs solely in its
capacity as the holder of certain rights with respect to the Shares, and nothing
herein shall limit or affect any actions taken in its capacity or the capacity
of any of the Representatives as an officer or director of the Company.
7. DEFINITIONS. For the purposes of this Agreement:
7.1 "BENEFICIAL OWNERSHIP" or "BENEFICIAL OWNER" with respect to
any securities shall mean having "beneficial ownership" of
such securities (as determined pursuant to Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative
counting of the same security by the same holder, securities
Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person
would constitute a "group" as within the meaning of Section
13(d)(3) of the Exchange Act.
7.2 "PERSON" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization
or other entity.
8. MISCELLANEOUS.
8.1 NOTICES. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally,
telegraphed or telecopied or sent by certified or registered
mail, postage prepaid, and shall be deemed to be given, dated
and received (i) when so delivered personally, (ii) upon
receipt of an appropriate electronic answerback or
confirmation when so delivered by telegraph or telecopy (to
such number specified below or another number or numbers as
such person may subsequently designate by notice given
hereunder), or (iii) five business days after the date of
mailing to the following address or to such other address or
addresses as such person may subsequently designate by notice
given hereunder, if so delivered by mail:
IF TO PARENT: Infinity Associates LLC
c/o Perseus L.L.C.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Marsden X. Xxxxx
Fax No.: 000-000-0000
WITH A COPY TO: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
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Fax No.: (000) 000-0000
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Selim Day
Fax No.: (000) 000-0000
IF TO THE STOCKHOLDER
REPRESENTATIVE: Xxxx Brothers & Co., Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, President
Fax No.: (000) 000-0000
IF TO THE COMPANY: Haggar Corp.
00000 Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Fax No.: (000) 000-0000
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WITH A COPY TO: Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax No.: (000) 000-0000
8.2 FURTHER ACTIONS. Each of the parties hereto agrees that it
will use its commercially reasonable efforts to do all things
necessary to effectuate this Agreement. Stockholder
Representative and the Company hereby covenant and agree to
execute and deliver any additional documents reasonably
necessary or desirable to carry out the purpose and intent of
this Agreement.
8.3 ENTIRE AGREEMENT. This Agreement, together with the documents
expressly referred to herein, constitutes the entire agreement
and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the
subject matter hereof.
8.4 AMENDMENTS. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties
hereto. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist
upon compliance by any other party hereto with its obligations
hereunder, and any custom or practice of the parties at
variance with the terms hereof shall not constitute a waiver
by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
8.5 SPECIFIC PERFORMANCE. Each of the parties hereto acknowledges
and agrees that in the event of any breach of this Agreement,
each non-breaching party would be irreparably and immediately
harmed and could not be made whole by monetary damages. It is
accordingly agreed that the parties hereto (i) will waive, in
any action for specific performance, the defense of adequacy
of a remedy at law and (ii) shall be entitled, in addition to
any other remedy to which they may be entitled at law or in
equity, to compel specific performance of this Agreement.
8.6 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective
successors, assigns and personal representatives, but neither
this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties without the
prior written consent of the other parties.
8.7 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Nevada, without
giving effect to the principles of conflicts of law thereof.
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8.8 COUNTERPARTS. This Agreement may be executed manually or by
facsimile in two or more counterparts, all of which shall be
considered one and the same agreement and shall become
effective when a counterpart hereof shall have been signed by
each of the parties and delivered to the other parties.
8.9 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms
or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only
so broad as is enforceable.
8.10 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or
interpretation of this Agreement.
[Remainder of page is intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date and year first above written.
HAGGAR CORP. TEXAS CLOTHING HOLDING CORP.
By: /S/ X.X. Xxxxxx III By: /s/ Xxxxxxx X. Xxxxx
------------------------------ -----------------------------------
Name: X.X. Xxxxxx III Name: Xxxxxxx X. Xxxxx
----------------------------- ---------------------------------
Title: Chairman & CEO Title: President
---------------------------- --------------------------------
XXXX BROTHERS & CO., INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
---------------------------------
Title: President
--------------------------------
[SIGNATURE PAGE TO STOCK VOTING AGREEMENT]
EXHIBIT A
IRREVOCABLE PROXY
The undersigned hereby irrevocably (to the fullest extent permitted by
law) appoints the directors on the board of directors of Texas Clothing Holding
Corp., a Delaware corporation (the "PARENT"), and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Haggar Corp., a Nevada
corporation (the "COMPANY") described in the Stock Voting Agreement, as herein
defined (collectively, the "SHARES") in accordance with the terms of this Proxy.
The Shares are listed on the final page of this Proxy. Upon the execution of
this Proxy by the undersigned, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and the undersigned
hereby agrees not to grant any subsequent proxies with respect to the Shares
until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law, and
the Stock Voting Agreement) is coupled with an interest and is granted pursuant
to the Stock Voting Agreement of even date herewith by and between the Parent,
the Company and the undersigned stockholder (the "STOCK VOTING AGREEMENT"),
which is incorporated herein by reference, and is granted in consideration of
the Parent and a wholly owned subsidiary of Parent ("MERGER SUB") entering into
the Agreement and Plan of Merger (the "MERGER AGREEMENT"), by and among the
Parent, Merger Sub and the Company, which provides for the merger of Merger Sub
with and into the Company, with the Company being the surviving corporation (the
"MERGER"). This Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date. As used herein, the term "EXPIRATION
DATE" shall mean the date that the Stock Voting Agreement terminates in
accordance with its terms.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to exercise all voting,
consent and similar rights of the undersigned with respect to the Shares
(including, without limitation, the power to execute and deliver written
consents) (i) in favor of the approval of the Merger Agreement (or any amended
version or versions thereof) and the Merger, and all actions required in
furtherance thereof, at any meeting or meetings of the stockholders of the
Company, and at any adjournment, postponement or continuation thereof, at which
the Merger Agreement (or any amended version or versions thereof) and the Merger
are submitted for the consideration and vote of the stockholders of the Company;
(ii) against any action or agreement that would result in a breach in any
respect of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or the Stock Voting
Agreement; and (iii) except as otherwise agreed to in writing in advance by
Parent, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its Subsidiaries; (B) a sale, lease or
transfer of a material amount of assets of the Company or its Subsidiaries;
(C)(1) any change in a majority of the persons who constitute the board of
directors of the Company; (2) any change in the present capitalization of the
Company
Exhibit A-1
or any amendment of the Company's Articles of Incorporation or Bylaws; (3) any
other material change in the Company's corporate structure or business; or (4)
any other action which is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone or adversely affect in any material respect the
Merger and the transactions contemplated by the Merger Agreement.
The attorneys and proxies named above may not exercise this Proxy to
vote, consent or act on any other matter except as provided above. The
undersigned stockholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
[Remainder of Page Intentionally Left Blank]
Exhibit A-2
Dated: August 31, 2005
Signature of Stockholder: /s/ Xxxxxx X. Xxxx
---------------------------------
Print Name of Stockholder: Xxxx Brothers & Co., Inc.
By: Xxxxxx X. Xxxx, President
Shares Covered By Proxy: 840,264 shares of Company
Common Stock
[SIGNATURE PAGE TO PROXY]
