EXHIBIT 3
STOCK VOTING AGREEMENT
STOCK VOTING AGREEMENT, dated as of August 31, 2005 (this "AGREEMENT"),
among the undersigned stockholder (the "STOCKHOLDER"), 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"). Each capitalized term used herein, and not
otherwise defined herein, shall have the meaning set forth in the Merger
Agreement;
WHEREAS, the Stockholder, as of the date hereof, has Beneficial
Ownership, as defined in Section 7, of the number of shares of common stock,
$0.10 par value per share, of the Company ("COMPANY COMMON STOCK") set forth on
Exhibit A (the "EXISTING SHARES", and together with any shares of Company Common
Stock acquired by the Stockholder 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. Exhibit
A lists separately all options, warrants or other rights to purchase Company
Common Stock held by the Stockholder; and
WHEREAS, Parent and Merger Sub are entering into the Merger Agreement
in reliance on and in consideration of the Stockholder'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 hereby revokes any and all
previous proxies with respect to such Stockholder's 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 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 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 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 agrees to deliver to Parent a proxy in
the form attached hereto as EXHIBIT B (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. The
Stockholder represents and warrants to Parent as follows:
2.1 OWNERSHIP OF SHARES. On the date hereof, the Shares are all of
the Shares currently Beneficially Owned by the Stockholder.
The Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Section
1 hereof, sole power of disposition, sole power of conversion
and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Shares
set forth on Exhibit A hereto, with no limitations,
qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
The Stockholder currently has, and at all times during the
term hereof will have, good, valid and marketable title to the
Shares, free and clear of all liens, encumbrances, and
security interests (other than the encumbrances created by
this Agreement and other than restrictions on transfer under
applicable federal and state securities laws) and free of
other restrictions, options, rights to purchase or other
claims that would adversely affect the ability of the
Stockholder to perform its obligations hereunder or pursuant
to which, the Stockholder could be required to sell, assign or
otherwise transfer the Shares.
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2.2 AUTHORITY; BINDING AGREEMENT. The Stockholder 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 and
constitutes a legal, valid and binding agreement of the
Stockholder, 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 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 or 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 is a party or
by which the Stockholder is bound, in each case the effect of
which would adversely affect the ability of the Stockholder to
perform his obligations hereunder.
2.3 RELIANCE ON AGREEMENT. The Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement
in reliance upon the Stockholder's execution and delivery of
this Agreement.
3. CERTAIN COVENANTS OF THE STOCKHOLDER. Except in accordance
with the provisions of this Agreement, the Stockholder 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 shall not, other
than, in the case of a Stockholder that is an individual, as a
result of the death of the Stockholder (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, or (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.
3.2 STOP TRANSFER. The Stockholder hereby agrees with, and
covenants to, each other party hereto, that such Stockholder
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.
3.3 NOTIFICATIONS. The Stockholder shall, while this Agreement is
in effect, notify Parent promptly, but in no event later than
two business days, of the number of
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any shares of Company Common Stock acquired by the Stockholder
after the date hereof.
3.4 WAIVER OF CLAIMS. The Stockholder 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, 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 may defend against,
contest or settle any such action, claim suit or cause of
action brought against Stockholder that relates solely to the
Stockholder's capacity as a director or officer of the
Company.
3.5 ADDITIONAL VOTING AGREEMENTS. If requested by Parent, the
Stockholder agrees to use its commercially reasonable efforts
to cause the other beneficial owners of any shares of Company
Common Stock over which the Stockholder has shared voting or
dispositive power (such shares, the "SHARED SECURITIES") to
execute stock voting agreements and Irrevocable Proxies, in
substantially similar form to this Agreement and the
Irrevocable Proxy attached hereto, prior to the Effective
Time. If not so requested by Parent, the Stockholder
nonetheless agrees to use its commercially reasonable efforts
to cause the Shared Securities to be voted in a manner
consistent with this Agreement.
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 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.
6. ACTION IN THE STOCKHOLDER'S CAPACITY ONLY. The Stockholder
does not make any agreement or understanding herein as director or officer of
the Company. The Stockholder signs solely in his capacity as Beneficial Owner of
the Shares, and nothing herein shall limit or affect any actions taken in his
capacity as an officer or director of the Company.
7. DEFINITIONS. For the purposes of this Agreement:
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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; PROVIDED, HOWEVER,
that notwithstanding Rule 13d-3 under the Exchange Act,
"Beneficial Ownership" or "Beneficial Owner" for purposes of
this Agreement shall include only those securities over which
the Stockholder has sole voting and dispositive power. 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.
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Attention: Marsden ▇. ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
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Attention: Selim Day
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO THE STOCKHOLDER: at the address set forth on Exhibit A
IF TO THE COMPANY: Haggar Corp.
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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 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.
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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.
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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President Title: President
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▇. ▇. ▇▇▇▇▇▇, III
/s/ ▇.▇. ▇▇▇▇▇▇, III
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[SIGNATURE PAGE TO STOCK VOTING AGREEMENT]
INSTRUCTION: If you are an individual and are married, please have your spouse
complete this form:
SPOUSAL CONSENT
I am the spouse of ▇. ▇. ▇▇▇▇▇▇, III. On behalf of myself, my heirs and
legatees, I hereby join in and consent to the terms of the foregoing party's
Stock Voting Agreement, and agree to the voting of the Shares of the common
stock of the Company, beneficially owned by my spouse, that my spouse proposes
to vote pursuant to the Stock Voting Agreement.
Dated: August 31, 2005
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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(Signature of Spouse)
Printed Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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EXHIBIT A
STOCK OWNERSHIP AND ADDRESS NOTICE LIST
Beneficial Ownership: 594,294 shares of Company Common Stock. This number
includes 135,000 shares which may be acquired upon
exercise of stock options, all of which are currently
exercisable, but does not include 58,255 Shared
Securities.
Address for Notices: ▇. ▇. ▇▇▇▇▇▇, III
Haggar Corp.
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▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit A-1
EXHIBIT B
IRREVOCABLE PROXY
The undersigned stockholder of Haggar Corp., a Nevada corporation (the
"COMPANY"), 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 the Company that now or hereafter may be beneficially
owned by the undersigned, and any and all other shares or securities of the
Company issued or issuable in respect thereof on or after the date hereof
(collectively, the "SHARES") in accordance with the terms of this Proxy. The
Shares beneficially owned by the undersigned stockholder of the Company as of
the date of this Proxy 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), 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"), 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 vote the Shares, and 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
Exhibit B-1
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.
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 B-2
Dated: August 31, 2005
Signature of Stockholder: /s/ ▇.▇. ▇▇▇▇▇▇, III
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Print Name of Stockholder: /s/ ▇.▇. ▇▇▇▇▇▇, III
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Shares beneficially owned:
459,294 shares of Company Common Stock
-------
135,000 shares of Company Common Stock issuable
------- upon the exercise of outstanding
options, warrants or other rights
[SIGNATURE PAGE TO PROXY]