Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - AMERICAN APPAREL, INC | aa8k.htm |
Exhibit
10.1
October
28, 2009
Dov
Charney
c/o
American Apparel, Inc.
747
Warehouse Street
Los
Angeles, California 90021
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RE:
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Transfer of Restricted
Securities
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Dear
Sir:
Reference is made to (i) the Amended
and Restated Agreement and Plan of Reorganization, dated as of November 7, 2007
(as heretofore amended and as it may be hereafter amended, supplemented or
modified from time to time, the “Merger Agreement”),
by and among American Apparel, Inc. (f/k/a Endeavor Acquisition Corp.), a
Delaware corporation (the “Company”), American
Apparel (USA) LLC (f/k/a AAI Acquisition LLC), a California limited liability
company, American Apparel Inc., a California corporation, American Apparel, LLC,
a California limited liability company, each of the Canadian companies set forth
on Schedule A to the Merger Agreement (the “CI Companies”), Dov
Charney (“Mr.
Charney”), each of the stockholders of the CI Companies (with respect to
certain provisions of the Merger Agreement) and Sam Lim (with respect to certain
provisions of the Merger Agreement); (ii) the Lock-Up Agreement, dated December
12, 2007 (the “Lock-Up
Agreement”), executed by Mr. Charney; and (iii) the Letter Agreement Re:
Extension of Lock-Up Agreement, dated March 13, 2009 (the “Lock-Up Extension”),
among Mr. Charney, the Company and Lion/Hollywood L.L.C., a Delaware limited
company (as successor by assignment to Lion Capital (Guernsey) II Limited, the
“Investor”). Capitalized
terms used but not defined herein have the respective meanings set forth in the
Lock-Up Agreement.
The Company and the Investor hereby
agree that notwithstanding Section 5.10 of the
Merger Agreement, the Lock-Up Agreement and the Lock-Up Extension, Mr. Charney
shall have the right to Transfer, in a single transaction or in multiple
transactions, at any time and from time to time, an aggregate of up to five
million (5,000,000) shares of the Restricted Securities. For the
avoidance of doubt, the right to Transfer such shares is in addition to the
right of Mr. Charney to make any Transfer that is otherwise permitted by or that
would not be prevented by or subject to the Merger Agreement, the Lock-Up
Agreement or the Lock-Up Extension. Except as expressly provided
herein, nothing herein shall modify the Merger Agreement, the Lock-Up Agreement
or the Lock-Up Extension.
This
letter agreement is not intended to, and does not, confer upon any person or
entity, other than Mr. Charney, the Company and the Investor and their
respective assignees, any rights or remedies hereunder or in connection
herewith. This letter agreement will be legally binding on the undersigned and
on the undersigned’s heirs, successors, executors, administrators, conservators
and permitted assigns.
This
letter agreement will be governed by and construed in accordance with the laws
of the State of New York. Any action against either party hereto,
including any action for provisional or conservatory measures or action to
enforce any judgment entered by any court in respect of any thereof, may be
brought in any federal or state court of competent jurisdiction located in the
Borough of Manhattan in the State of New York, and each party hereto irrevocably
consents to the jurisdiction and venue in the United States District Court for
the Southern District of New York and in the courts hearing appeals therefrom
unless no federal subject matter jurisdiction exists, in which event, each party
hereto irrevocably consents to jurisdiction and venue in the Supreme Court of
the State of New York, New York County, and in the
courts
hearing appeals therefrom. Each party hereto hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense, counterclaim
or otherwise, in any action or proceeding with respect to this letter agreement,
any claim that it is not personally subject to the jurisdiction of the
above-named courts for any reason other than the failure to serve process in
accordance with this letter agreement, that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and to the fullest extent permitted by applicable law, that the suit, action or
proceeding in any such court is brought in an inconvenient forum, that the venue
of such suit, action or proceeding is improper, or that this letter agreement,
or the subject matter hereof or thereof, may not be enforced in or by such
courts and further irrevocably waives, to the fullest extent permitted by
applicable law, the benefit of any defense that would hinder, fetter or delay
the levy, execution or collection of any amount to which the party is entitled
pursuant to the final judgment of any court having jurisdiction. Each
party expressly acknowledges that the foregoing waiver is intended to be
irrevocable under the laws of the State of New York and of the United States of
America.
EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS LETTER AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
The
parties hereby acknowledge and agree that each party would not have an adequate
remedy at law for money damages, and irreparable damage would occur, in the
event that any of the provisions of this letter agreement were not performed in
accordance with their specific terms or were otherwise breached. It
is accordingly agreed that any party shall be entitled to an injunction or
injunctions to prevent breaches of this letter agreement by the other party and
to enforce specifically the terms and provisions of this letter agreement
against the other party, this being in addition to any other remedy to which
either such party is entitled at law or in equity, and each party waives (a) the
defense in any action for an injunction or other equitable relief that a remedy
at law would be adequate and (b) agrees that any such action for injunctive
relief or specific performance may be brought in (and hereby irrevocably submits
to the jurisdiction of) any federal or state court in the State of New
York.
[signature page
follows]
IN WITNESS WHEREOF, the undersigned
have executed this letter agreement as of the date first written
above.
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LION/HOLLYWOOD
L.L.C.
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By:
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/s/ Jacob Capps | |||
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Name:
Jacob
Capps
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Title:
President
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AMERICAN
APPAREL, INC.
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By:
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/s/ Glenn A. Weinman
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|||
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Name:
Glenn A. Weinman
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Title:
Senior Vice President, General
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||||
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Counsel
and Secretary
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ACKNOWLEDGED
AND ACCEPTED
as
of the date first written above:
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/s/ Dov Charney
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Dov
Charney
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[Signature
Page to Waiver Letter]