TENDER AND OPTION AGREEMENT
This TENDER AND OPTION AGREEMENT (the "Agreement") is entered into as
of the 26th day of June, 2001 by and among Tropical Sportswear Int'l
Corporation, a Florida corporation ("Buyer"), HB Acquisition Corp., a Georgia
corporation ("Sub"), and the individual who is the signatory to this Agreement
(the "Shareholder").
W I T N E S S E T H
WHEREAS, concurrently herewith, Buyer and Sub are entering into an
Agreement and Plan of Merger (the "Merger Agreement") with Duck Head Apparel
Company, Inc., a Georgia corporation ("Target"), pursuant to which Buyer will
acquire Target, on the terms and subject to the conditions set forth in the
Merger Agreement, by means of a tender offer by Sub (the "Offer") for all
outstanding shares of common stock, $0.01 par value, of Target (the "Target
Common Stock"), at $4.75 per share, net to the seller in cash, without interest,
followed by a merger (the "Merger") of Sub with and into Target; and
WHEREAS, as of the date hereof, the Shareholder beneficially owns
directly or indirectly shares of Target Common Stock (which stock and associated
rights are referred to as the "Existing Shares" and, together with any
After-Acquired Shares (as defined below), the "Shares"), which Existing Shares
constitute approximately 12.2% of the issued and outstanding shares of Target
Common Stock; and
WHEREAS, as an inducement to Buyer to acquire Target, and as a
condition to Buyer's willingness to enter into the Merger Agreement and
consummate the transactions contemplated thereby, Buyer has required that the
Shareholder agrees, and the Shareholder has agreed (i) to grant Buyer an
irrevocable option (the "Option") to buy the Shares at $4.75 per share, net to
the seller in cash, without interest (the "Option Price"); and (ii) to tender
and, in the event any or all of such Option is not theretofore exercised, sell
the Shares in the Offer and vote his Shares in favor of the Merger, in each case
upon the terms and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the execution and delivery by Buyer
and Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE 1 AGREEMENT TO TENDER; OPTION
1.1 TENDER OF SHARES.
Shareholder hereby agrees (a) to validly tender (or cause the record
owner of any Shares to tender) all Shares beneficially owned by such Shareholder
pursuant to the Offer, not later than the fifth (5th) business day after
commencement of the Offer or, with respect to After-Acquired Shares, within one
(1) business day following the acquisition thereof, (b) not to withdraw any
Shares so tendered without the prior written consent of Buyer except as
otherwise provided in clause (c) of this Section 1.1, and (c) to withdraw all
Shares tendered in the Offer immediately upon receipt of notice from Buyer that
it is exercising the Option in order that it may acquire such Shares in
accordance with Section 1.2(a) hereof. Shareholder hereby acknowledges and
agrees that Buyer's obligation to accept for payment and pay for the Shares in
the Offer is subject to the terms and conditions of the Offer.
1.2 OPTION.
(a) In order to induce Buyer to enter into the Merger Agreement, and subject to
the terms and conditions of this Agreement, the Shareholder hereby irrevocably
grants to Buyer the Option, exercisable in whole but not in part from and after
the date hereof, to purchase Shares at the Option Price. If (i) the Offer is
terminated, abandoned or withdrawn by Buyer (whether due to the failure of any
of the conditions thereto or otherwise) or (ii) the Merger Agreement is
terminated pursuant to Section 11.1(b), 11.1(c), 11.1(d), 11.1(g), 11.1(h) or
11.1(i) therein (and in the case of Sections 11.1(b) or (c), such termination is
by Buyer), the Option shall continue to be exercisable, in whole but not in
part, for a period of ninety (90) days after the date of the occurrence of such
event, so long as (x) all waiting periods under Law required for the purchase of
the Shares pursuant to the Option upon such exercise shall have expired or been
terminated and (y) no court or governmental or Regulatory Authority (or
legislative body or commission) shall have enacted, issued, promulgated,
enforced or entered any Law or Order (whether temporary, preliminary or
permanent) or taken any other action which prohibits, restricts or makes illegal
the exercise of the Option pursuant to this Agreement. In the event the Merger
Agreement is terminated other than pursuant to Section 11.1(b), 11.1(c),
11.1(d), 11.1(g), 11.1(h) or 11.1(i) therein (and in the case of Sections
11.1(b) or (c), such termination is by Buyer), the Option shall terminate upon
such termination of the Merger Agreement.
(b) In the event Buyer wishes to exercise the Option, Buyer shall deliver
written notice thereof to the Shareholder, specifying the date, time and place
(in Atlanta, Georgia) for the closing of such purchase. A closing of the
purchase of Shares pursuant to the Option (a "Closing") shall take place on the
date, at the time and at the place specified in such notice; provided, that if
at such date any of the conditions specified in Section 1.2(a)(x) or (y) hereof
shall not have been satisfied or waived, Buyer may postpone such Closing until a
date within two (2) business days after such conditions are satisfied or waived.
At the Closing, the Shareholder will deliver to Buyer (in accordance with
Buyer's reasonable instructions) the certificates representing the Shares being
purchased pursuant to Section 1.2, duly endorsed or accompanied by stock powers
duly executed in blank. At such Closing, Buyer shall either (i) wire transfer to
the account designated by Shareholder or (ii) deliver to Shareholder a certified
or bank cashier's check payable to or upon the order of Shareholder, in each
case in an amount equal to the number of Shares being purchased from Shareholder
at such Closing multiplied by the Option Price, in immediately available funds.
1.3 ASSIGNMENT OF DIVIDENDS AND OTHER DISTRIBUTIONS; ADJUSTMENT OF OPTION PRICE.
Shareholder hereby assigns to Buyer any and all dividends and other
distributions that may be declared, set aside or paid by Target with respect to
Shareholder's Shares during the term of this Agreement; alternatively, and at
Buyer's option, the Option Price for Options relating to Shares for which any
dividends have been declared, set aside or paid by Target may be adjusted
downward by the value of any such dividends declared, set aside or paid by
Target; provided in any such case that the record date for any such dividend or
other distribution is at a time when Shareholder owns the Shares.
1.4 TITLE.
Shareholder agrees that, in connection with the transfer of
Shareholder's Shares to Buyer in the Offer or to Buyer pursuant to the Option,
Shareholder shall transfer to and unconditionally vest in the Buyer good and
valid title to the Shares, free and clear of all claims, liens, restrictions,
security interests, pledges, limitations and encumbrances whatsoever, except
those arising hereunder.
1.5 NO PURCHASE.
Buyer may allow the Offer to expire without accepting for payment or
paying for any Shares, as set forth in the Merger Agreement, and Buyer may allow
the Option to terminate without purchasing all or any Shares pursuant to the
exercise thereof. If any Shares are not accepted for payment in accordance with
the terms of the Offer or purchased pursuant to the Option, they shall be
returned to the Shareholder, whereupon they shall continue to be held by
Shareholder subject to the terms and conditions of this Agreement.
1.6 EFFECTIVENESS OF CERTAIN PROVISIONS
Notwithstanding any other provision of this Agreement, Buyer may not
exercise any of its rights under Section 1.1(c) or Section 1.2, or under Section
3.4 to require Shareholder to exercise, exchange or convert any Rights, until
the earlier of (a) the thirty-first (31st) day after the date of this Agreement
or (b) the date Target receives from Buyer an irrevocable waiver by Buyer of
Buyer's rights under Section 11.1(f) of the Merger Agreement.
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
The Shareholder hereby represents and warrants to Buyer:
2.1 BENEFICIAL OWNER.
The Shareholder is the beneficial owner of the number of shares of
Target Common Stock set forth below the Shareholder's name on the signature page
hereof. Except for the Shareholder's Shares and any other shares of Target
Common Stock subject hereto, the Shareholder is not the record or beneficial
owner of any shares of Target Common Stock. The Shareholder has the legal
capacity and authority to enter into and perform all of the Shareholder's
obligations under this Agreement. This Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding agreement of, the
Shareholder, enforceable in accordance with its terms.
2.2 NO BREACH BY AGREEMENT.
Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby will
result in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction of any
kind to which the Shareholder is a party or bound or to which the Shareholder's
Shares are subject. If the Shareholder is married and the Shareholder's Shares
constitute community property, this Agreement has been duly authorized, executed
and delivered by, and constitutes a valid and binding agreement of, the
Shareholder's spouse, enforceable against such person in accordance with its
terms. Consummation by the Shareholder of the transactions contemplated hereby
will not (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 Shareholder or the Shareholder's Shares or (ii) conflict with
or result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation to which such Shareholder is a party or by which such
Shareholder or any of such Shareholder's properties or assets may be bound.
2.3 NO LIENS.
The Shareholder's Shares and the certificates representing such Shares
are now, and at all times during the term hereof will be, held by the
Shareholder, or by a nominee or custodian for the benefit of such Shareholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
2.4 NO BROKERS.
No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of the Shareholder.
2.5 ACKNOWLEDGMENT.
The Shareholder understands and acknowledges that Buyer is entering
into, and causing Sub to enter into, the Merger Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder
acknowledges that the irrevocable proxy set forth in Section 3.3 is granted in
consideration for the execution and delivery of the Merger Agreement by Buyer
and Sub.
ARTICLE 3 SHAREHOLDER COVENANTS AND AGREEMENT; GRANT OF PROXY
The Shareholder agrees with, and covenants to, Buyer as follows:
3.1 VOTING AGREEMENTS.
(a) At any meeting of shareholders of Target called to vote upon the Merger and
the Merger Agreement or at any adjournment thereof or in any other circumstances
upon which a vote, consent or other approval of shareholders of Target with
respect to the Merger and the Merger Agreement is sought (the "Shareholders'
Meeting"), the Shareholder shall vote (or cause to be voted) the Shareholders'
Shares in favor of the Merger, the execution and delivery by Target of the
Merger Agreement, and the approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement, provided that the terms of
the Merger Agreement shall not have been amended to reduce the consideration
payable in the Merger to a lesser amount of cash or otherwise to materially and
adversely impair the Shareholder's rights or increase the Shareholder's
obligations thereunder.
(b) At any meeting of shareholders of Target or at any adjournment thereof or in
any other circumstances upon which their vote, consent or other approval is
sought, the Shareholder shall vote (or cause to be voted) such Shareholder's
Shares against (i) any Acquisition Proposal (other than the Merger), (ii) any
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by Target (other
than the Merger), (iii) any amendment of Target's Articles of Incorporation or
Bylaws or other proposal or transaction involving Target or any of its
Subsidiaries which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or
any of the other transactions contemplated by the Merger Agreement (each of the
foregoing in clause (ii) or (iii) above, a "Competing Transaction"), (iv) 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
Target under the Merger Agreement or this Agreement; and (v) except as otherwise
agreed to in writing in advance by Buyer, any of the following actions or
agreements (other than the Merger Agreement or the transactions contemplated
thereby): (A) any action or agreement that is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone or attempt to discourage or
adversely affect the Merger, the Offer and the transactions contemplated by this
Agreement and the Merger Agreement; (B) a reorganization, recapitalization,
dissolution or liquidation of Target or its Subsidiaries; (C) any change in the
management or Board of Directors of Target, except as contemplated by the Merger
Agreement; (D) any change in the present capitalization or dividend policy of
Target; or (E) any other material change in Target's corporate structure or
business. Notwithstanding anything to the contrary contained in this Agreement,
each Shareholder who is also a member of the Board of Directors of Target shall
be free to act in such Shareholder's capacity as a member of the Board of
Directors of Target and to discharge such Shareholder's fiduciary duty as such.
The provisions of this Section 3.1 shall constitute a voting agreement under
Section 14-2-731 of the Georgia Business Corporation Code.
3.2 CERTAIN COVENANTS.
(a) Transfer. The Shareholder shall not, except pursuant to this Agreement, (i)
transfer (which term shall include, without limitation, for the purposes of this
Agreement, any sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of the Shareholder's Shares or any interest therein,
except pursuant to the Merger; (ii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all of such
Shares or any interest therein, (iii) grant any proxy, power of attorney or
other authorization in or with respect to such Shares, or (iv) deposit such
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to such Shares; provided, that the Shareholder may transfer (as defined
above) any of the Shareholder's Shares to any other person who is on the date
hereof, or to any family member of a person or charitable institution which
prior to the Shareholders Meeting and prior to such transfer becomes, a party to
this Agreement bound by all the obligations of the "Shareholder" hereunder.
(b) Exchange of Shares; Waiver of Rights of Appraisal. If the requisite number
of holders of Target Common Stock approve the Merger and the Merger Agreement,
the Shareholder's Shares shall, pursuant to the terms of the Merger Agreement,
be exchanged for the consideration provided in the Merger Agreement. The
Shareholder hereby waives any rights of appraisal with respect to the Merger, or
rights to dissent from the Merger, that such Shareholder may have.
(c) Other Offers. The Shareholder shall not, nor shall Shareholder permit any
investment banker, attorney or other adviser or representative of the
Shareholder to, directly or indirectly, (i) solicit, initiate, encourage or
induce the making, submission or announcement of, any Acquisition Proposal or
(ii) participate in any discussions or negotiations regarding, or furnish to any
Person or "Group" (as such term is defined in Section 13(d) under the Exchange
Act) any nonpublic information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes or may
reasonably be expected to lead to, any Acquisition Proposal. Without limiting
the foregoing, it is understood that any violation of the restrictions set forth
in the preceding sentence by an investment banker, attorney or other adviser or
representative of the Shareholder, whether or not such person is purporting to
act on behalf of the Shareholder or otherwise (except where such person is
acting on behalf of the Board of Directors of Target in connection with any
activity of such Board permitted by the Merger Agreement), shall be deemed to be
in violation of this Section 3.2(c) by the Shareholder. "Acquisition Proposal"
does not include the Merger and the other transactions contemplated by the
Merger Agreement or any transfer expressly permitted by the proviso to Section
3.2(a).
(d) Confidentiality. The Shareholder recognizes that successful consummation of
the transactions contemplated by this Agreement may be dependent upon
confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure thereof, each Shareholder hereby agrees
not to disclose or discuss such matters with anyone not a party to this
Agreement (other than counsel and advisors, if any and except where such person
is acting on behalf of the Board of Directors of Target in connection with any
activity of such Board permitted by the Merger Agreement) without the prior
written consent of Buyer, except for filings required pursuant to the Exchange
Act and the rules and regulations thereunder or disclosures such Shareholder's
counsel advises are necessary in order to fulfill such Shareholder's obligations
imposed by laws, in which event such Shareholder shall give notice of such
disclosure to Buyer as promptly as practicable so as to enable Buyer to seek a
protective order from a court of competent jurisdiction with respect thereto.
(e) No Inconsistent Agreements. The Shareholder shall not enter into any
agreement or understanding with any Person the effect of which would be
inconsistent or violative of the provisions of this Agreement.
3.3 GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
(a) The Shareholder hereby irrevocably grants to, and appoints, Buyer and
Xxxxxxx Xxxxxxx, Chairman and Chief Executive Officer of Buyer, and Xxxxxxx
Xxxxx, Executive Vice President and Chief Financial Officer of Buyer, in their
respective capacities as officers of Buyer, and any individual who shall
hereafter succeed to any such office of Buyer, and each of them individually,
the Shareholder's proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of the Shareholder, to vote the
Shareholder's Shares, or grant a consent or approval in respect of such Shares,
(i) in favor of the Merger, the execution and delivery of the Merger Agreement
and approval of the terms thereof and each of the other transactions
contemplated by the Merger Agreement, provided that the terms of the Merger
Agreement shall not have been amended to reduce the consideration payable in the
Merger to a lesser amount of cash or otherwise to materially and adversely
impair the Shareholder's rights or increase the Shareholder's obligations
thereunder, and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in respect of
the Shareholder's Shares that may still be in effect are not irrevocable, and
that any such proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set forth in this
Section 3.3 is given in connection with the execution of the Merger Agreement,
and that such irrevocable proxy is given to secure the performance of the duties
of the Shareholder under this Agreement. The Shareholder hereby further affirms
that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. The Shareholder hereby ratifies and confirms all that
such irrevocable proxy may lawfully do or cause to be done by virtue hereof.
Such irrevocable proxy is executed and intended to be irrevocable in accordance
with the provisions of Section 14-2-722 of the Georgia Business Corporation
Code.
3.4 AGREEMENT AS TO CERTAIN EVENTS.
The Shareholder agrees that this Agreement and the obligations
hereunder shall attach to the Shareholder's Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of such Shares shall
pass, whether by operation of law or otherwise, including without limitation the
Shareholder's successors or assigns. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of Target affecting the Target Common Stock, or the
acquisition of additional shares of Target Common Stock or other voting
securities of Target by any Shareholder, the number of Shares subject to the
terms of this Agreement shall be adjusted appropriately and this Agreement and
the obligations hereunder shall attach to any additional shares of Target Common
Stock or other voting securities of Target issued to or acquired by the
Shareholder. The Shareholder agrees, subject to the following provisions of this
Section 3.4, at the request of Buyer, to exercise, exchange or convert such
Shareholder's options, if any, to acquire additional shares of Target Common
Stock ("Rights") into Shares of Target Common Stock, so as to constitute
After-Acquired Shares under this Agreement. In order to facilitate the exercise
at the request of Buyer of any such Right, Buyer shall loan to any requesting
Shareholder funds sufficient to allow such Shareholder to exercise the Right.
Such loan shall not be interest bearing, shall be due and payable upon the
earlier of acquisition by Buyer of the After-Acquired Shares, consummation of
the Merger or termination of this Agreement and, at Buyer's option, shall be
secured by a pledge of the shares of Target Common Stock acquired upon exercise
of such Right. Each Shareholder hereby agrees to promptly notify Buyer in
writing of the number of After-Acquired Shares that may be acquired by such
Shareholder, if any, after the date hereof. "After-Acquired Shares" shall mean
any shares of Target Common Stock acquired directly or indirectly, or otherwise
beneficially owned, by any of the Shareholders in any capacity after the date
hereof and prior to the termination hereof, whether upon the exercise of
options, warrants or rights, the conversion or exchange of convertible or
exchangeable securities, or by means of a purchase, dividend, distribution,
gift, bequest, inheritance or as a successor in interest in any capacity
(including a fiduciary capacity) or otherwise; and (ii) the phrases
"beneficially own" or "beneficial ownership" with respect to any securities
shall mean having "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in writing (without
duplicative counting of the same securities 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" within the
meaning of Rule 13d-5 of the Exchange Act).
3.5 STOP TRANSFER; LEGENDS.
Target agrees with, and covenants to, Buyer that Target shall not
register the transfer of any certificate representing any of the Shareholder's
Shares, unless such transfer is made to Buyer or Sub or otherwise in compliance
with this Agreement. The Shareholder agrees that the Shareholder will tender to
Target, within five (5) business days after the date thereof, any and all
certificates representing such Shareholder's Shares and Target will inscribe
upon such certificates the following legend: "The shares of Common Stock, $0.01
par value, of Duck Head Apparel Company, Inc. represented by this certificate
are subject to a Tender and Option Agreement dated as of June 26, 2001, and may
not be sold or otherwise transferred, except in accordance therewith. Copies of
such Agreement may be obtained at the principal executive offices of Duck Head
Apparel Company, Inc."
3.6 FURTHER ASSURANCES; PUBLIC DISCLOSURE.
The Shareholder shall, upon request of Buyer, execute and deliver any
additional documents and take such further actions as may reasonably be deemed
by Buyer to be necessary or desirable to carry out the provisions hereof and to
vest the power to vote such Shareholder's Shares as contemplated by Section 3.3
in Buyer and the other irrevocable proxies described therein at the expense of
Buyer. The Shareholder hereby agrees that Buyer may publish and disclose in (i)
the Offer Documents and (ii) if approval of Target's Shareholders is required
under applicable law, the Proxy Statement (including all documents and schedules
filed with the SEC), such Shareholder's identity and ownership of Target Common
Stock and the nature of such Shareholder's commitments, arrangements and
understandings under this Agreement.
ARTICLE 4 REGULATORY APPROVALS; TERMINATION
4.1 REGULATORY APPROVALS.
Each of the provisions of this Agreement is subject to compliance with
applicable regulatory conditions and receipt of any required regulatory
approvals.
4.2 TERMINATION.
This Agreement, and all rights and obligations of the parties
hereunder; shall terminate upon the first to occur of (x) the Effective Time of
the Merger or (y) the date upon which the Merger Agreement is terminated in
accordance with its terms; provided that if an "Extension Event" shall have
occurred as of or prior to termination of the Merger Agreement, then, for a
period of two hundred and seventy (270) days following such termination, (i) the
rights and obligations of the parties hereto under Sections 3.1(b), 3.2(c),
3.3(a)(ii) and 3.4 hereof shall continue in full force and effect and (ii) the
Shareholder shall not voluntarily transfer any or all of the Shareholder's
Shares in connection with any Competing Transaction or takeover proposal. For
purposes of the foregoing, an "Extension Event" shall mean any of the following
events: (A) the shareholders meeting to approve the Merger Agreement shall not
have been held or the approval of the Merger at such meeting by the holders of a
majority of the outstanding shares of Target Common Stock shall not have been
obtained, or (B) any person (other than Buyer or any Subsidiary of Buyer) after
the date of this Agreement shall have made or re-affirmed, or publicly disclosed
an intention to make or re-affirm, a takeover proposal or proposal for a
Competing Transaction.
ARTICLE 5 MISCELLANEOUS
5.1 DEFINITIONS.
Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
5.2 NOTICES.
All notices, requests, claims, demands and other communications under
this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to Buyer, to the address provided in
the Merger Agreement; and (ii) if to the Shareholder, to such Shareholder's
address shown on the last page hereof.
5.3 INTERPRETATION.
The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. When a reference is made in this Agreement to a Section, such
reference shall be to a Section in this Agreement unless otherwise indicated.
The words "include," "includes" and "including" when used herein shall be deemed
in each case to be followed by the words "without limitation." The descriptive
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
5.4 COUNTERPART.
This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
5.5 ENTIRE AGREEMENT.
This Agreement (including the documents and instruments 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 and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
5.6 GOVERNING LAW.
Regardless of any conflict of law or choice of law principles that
might otherwise apply, the parties agree that this Agreement shall be governed
by and construed in all respects in accordance with the laws of the State of
Georgia. The parties all expressly agree and acknowledge that the State of
Georgia has a reasonable relationship to the parties and/or this Agreement. As
to any dispute, claim or litigation arising out of or relating in any way to
this Agreement or the transaction at issue in this Agreement, the parties hereto
hereby agree and consent to be subject to the exclusive jurisdiction of the
United States District Court for the Northern District of Georgia or the Middle
District of Florida to the extent jurisdiction is so available. Each party
hereto hereby irrevocably waives, to the fullest extent permitted by law, (a)
any objection that it may now or hereafter have to laying venue of any suit,
action or proceeding brought in either such court, (b) any claim that any suit,
action or proceeding brought in either such court has been brought in an
inconvenient forum, and (c) any defense that it may now or hereafter have based
on lack of personal jurisdiction in such forum.
5.7 NO ASSIGNMENT.
Neither this Agreement nor any of the rights, interests or obligations
under this Agreement shall be assigned, in whole or in part, by operation of law
or otherwise, by any of the parties without the prior written consent of the
other parties, except as expressly contemplated by Section 3.2(a) and provided
that Buyer, without obtaining the consent of any other party hereto, be entitled
to assign this Agreement or all or any of its rights or obligations hereunder
(i) to any one or more affiliates of Buyer and (ii) to any lender to Buyer or
Sub as collateral security but no assignment by Buyer under this Section 5.7
shall relieve Buyer of its obligations under this Agreement. Any assignment in
violation of the foregoing shall be void.
5.8 SPECIFIC PERFORMANCE.
The parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement was not performed in
accordance with its specific terms or was otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
5.9 SEVERABILITY.
If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
5.10 AMENDMENTS.
No amendment, modification or waiver in respect of this Agreement shall
be effective against any party unless it shall be in writing and signed by such
party.
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Tender and Option Agreement as of the day and year first above written.
TROPICAL SPORTSWEAR INT'L CORPORATION
/s/ Xxxxxxx Xxxxx
------------------------------------
By: Xxxxxxx Xxxxx
Its: Executive Vice President
HB ACQUISITION CORPORATION
/s/ Xxxxxxx Xxxxx
------------------------------------
By: Xxxxxxx Xxxxx
Its: President
DUCK HEAD APPAREL COMPANY, INC.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
By: Xxxxxxx X. Xxxxxxx
Its: President
SHAREHOLDER:
/s/ E. Xxxxx Xxxxxxx, XX
--------------------------------------
Name: E. Xxxxx Xxxxxxx, XX
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Number of Shares
Beneficially Owned: 347,593
