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| OMB APPROVAL|
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|OMB NUMBER: 3235-0145|
UNITED STATES |EXPIRES: |
SECURITIES AND EXCHANGE COMMISSION | OCTOBER 31, 2002 |
Washington, D.C. 20549 |ESTIMATED AVERAGE |
|BURDEN HOURS |
|PER RESPONSE ...14.90|
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)*
DONNA KARAN INTERNATIONAL INC.
(Name of Issuer)
Common Stock, Par Value, $0.01 Per Share
(Title of Class and Securities)
257826107
(CUSIP Number)
Louise Firestone, Esq.
LVMH Moet Hennessy Louis Vuitton Inc.
19 East 57th Street - Fifth Floor
New York, NY 10022
(212) 931-2707
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
Copies to:
Barack Ferrazzano Kirschbaum Perlman & Nagelberg
333 West Wacker Drive - Suite 2700
Chicago, Illinois 60606
Attention: Peter J. Barack, Esq.
(312) 984-3101
and
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Attention: Paul Kingsley, Esq.
(212) 450-4277
March 31, 2001
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement
on Schedule 13G to report the acquisition that is the
subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e),
240.13d-1(f) or
240.13d-1(g), check the following box. [ ]
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Section
240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out
for a reporting person's initial filing on this form
with respect to the subject class of securities, and
for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover
page shall not be deemed to be "filed" for the
purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to
the liabilities of that section of the Act but shall
be subject to all other provisions of
the Act (however, see the Notes).
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CUSIP NO. 257826107 13D
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1 NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
(ENTITIES ONLY)
LVMH Moet Hennessy Louis Vuitton S.A.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions)
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
Not Applicable
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
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7 SOLE VOTING POWER
NUMBER OF
215,000
SHARES -----------------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
10,403,769*
OWNED BY EACH -----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
REPORTING
215,000
PERSON -----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
10,403,769*
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,618,769
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (See Instructions) [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48%**
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
CO
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* REPRESENTS 10,403,769 SHARES OF COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF
DONNA KARAN INTERNATIONAL INC. THAT ARE SUBJECT TO VOTING AGREEMENTS ATTACHED AS
EXHIBITS B AND C TO THIS SCHEDULE 13D. THE REPORTING PERSON MAY BE DEEMED TO
BENEFICIALLY OWN SUCH SHARES. THE FILING OF THIS SCHEDULE 13D SHALL NOT BE
DEEMED AS AN ADMISSION THAT THE REPORTING PERSON IS THE BENEFICIAL OWNER OF SUCH
SHARES.
** BASED UPON 22,253,254 SHARES OUTSTANDING AT MARCH 28, 2001, AS REPRESENTED BY
DONNA KARAN INTERNATIONAL INC. IN THE AGREEMENT AND PLAN OF MERGER DATED AS OF
MARCH 31, 2001 ATTACHED AS EXHIBIT A TO THIS SCHEDULE 13D.
SCHEDULE 13D -
ITEM 1. SECURITY AND ISSUER.
The class of equity securities to which this Schedule 13D (the "Schedule 13D")
relates is the common stock, par value $0.01 per share (the "Common Stock"), of
Donna Karan International Inc., a Delaware corporation (the "Company"), which
has its principal executive offices at 550 Seventh Avenue, New York, New York
10018.
ITEM 2. IDENTITY AND BACKGROUND.
The person filing this statement is LVMH Moet Hennessy Louis Vuitton S.A., a
French societe anonyme ("LVMH"), whose principal business office is located at
30, avenue Hoche, 75008 Paris, France. The business of LVMH is the ownership of
interests in companies in the luxury products and retail business, the auction
business and wines and spirits sectors. The names, addresses, occupations and
citizenship of the executive officers and directors of LVMH are set forth on
Annex A hereto.
LVMH holds 215,000 shares of common stock through Sofidiv S.A., a French societe
anonyme corporation ("Sofidiv SA"), whose principal business office is located
at 30, avenue Hoche, 75008 Paris, France. The business of Sofidiv SA is the
ownership of interests in, or the ownership of interests in funds that invest
in, companies principally active in the luxury goods and retail business. LVMH
owns 99.99% of Sofidiv SA. LVMH Moet Hennessy Louis Vuitton Inc., a Delaware
corporation ("LVMH INC."), is a majority owned subsidiary of Sofidiv SA. The
business of LVMH Inc. is the ownership of interests in companies principally
active in the luxury goods business and the distribution of luxury products,
outside of France. The names, addresses, occupations and citizenship of the
executive officers and directors of each of Sofidiv SA and LVMH Inc. are set
forth on Annex A hereto.
Montaigne Participations et Gestion ("MPG"), a French societe anonyme whose
principal business office is located at 30, avenue Hoche, 75008 Paris, France,
indirectly controls LVMH. The principal business of MPG is the ownership of
interests in companies active in the luxury products and wine and spirits
sectors. MPG is itself indirectly controlled by M. Bernard Arnault (together
with certain members of his family). Bernard Arnault is Chairman of the Board of
Directors and Chief Executive Officer of each of LVMH and MPG. The names,
addresses, occupations and citizenship of the executive officers and directors
of MPG are set forth on Annex A hereto.
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As a result of the Voting Agreements (as defined in Item 3), the Reporting
Person may be deemed to be a "group" with the Stockholders (as defined in Item
3) within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934,
as amended (the "Act").
During the last five years, neither LVMH, nor, to the best of its knowledge, any
of Sofidiv SA, LVMH Inc. or MPG, or any of LVMH's, Sofidiv SA's, LVMH Inc.'s or
MPG's respective executive officers and directors listed on Annex A hereto (a)
has been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors), or (b) has been party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities law or a finding of any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
With respect to 215,000 shares of Common Stock held by Sofidiv SA, such shares
were purchased by an affiliate of Sofidiv SA in 1996 with general working
capital at the price of $24.00 per share, or $5,160,000 in the aggregate.
LVMH Inc., DKI Acquisition, Inc., a Delaware corporation and a wholly owned
subsidiary of LVMH Inc. ("Acquisition Sub"), and the Company entered into an
Agreement and Plan of Merger dated as of March 31, 2001 (the "Merger
Agreement"), pursuant to which, subject to the terms and conditions contained
therein, the parties agreed to consummate the merger (the "Merger") of
Acquisition Sub with and into the Company. As a result of the Merger, holders of
Common Stock of the Company will be entitled to receive $10.75 per share in cash
merger consideration and holders of common stock of Acquisition Sub will be
entitled to receive all of the outstanding shares of capital stock of the
surviving corporation as described in more detail in Item 4.
As an inducement to LVMH Inc. and Acquisition Sub to enter into the Merger
Agreement with the Company, Donna Karan ("DK"), Stephan Weiss ("SW"), Trust FBO
Lisa Weiss Keyes, Corey Weiss and Gabrielle Karan U/A/D 2/2/96 (the "Children's
Trust"), The 2000 Stephan Weiss Revocable Trust (the "Weiss Trust") and The
Stephan Weiss and Donna Karan Alaska Community Property Trust (the "Alaska
Trust", and together with the Children's Trust and the Weiss Trust, the
"Trusts") (DK, SW and the Trusts, collectively, the "DK/SW Stockholders")
entered into a Voting Agreement with the Company, LVMH Inc. and Acquisition Sub
with respect to 5,243,028 shares (the "DK/SW Voting Agreement"). As a further
inducement, Tomio Taki ("Taki"), Frank Mori ("Mori") and Takihyo Inc. ("Takihyo"
and together with Taki and Mori, the "Takihyo Stockholders") (the DK/SW
Stockholders and the Takihyo Stockholders shall sometimes be collectively
referred to as the "Stockholders") entered into a Voting Agreement with LVMH
Inc. and Acquisition Sub with respect to 5,160,741 shares (the "Takihyo Voting
Agreement" and together with the DK/SW Voting Agreement, the "Voting
Agreements").
Neither LVMH Inc. nor Acquisition Sub purchased any shares of Common Stock
pursuant to the Voting Agreements and thus no funds were used for such purpose.
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ITEM 4. PURPOSE OF TRANSACTION.
A. THE MERGER AGREEMENT AND THE VOTING AGREEMENTS.
The Stockholders entered into the Voting Agreements in order to induce LVMH Inc.
and Acquisition Sub to enter into the Merger Agreement. Pursuant to the Voting
Agreements, each of the Stockholders has agreed, among other things and subject
to certain exceptions, (i) to vote the Stockholder's shares (the "Subject
Shares") in favor of the approval and adoption of the Merger Agreement (or any
amended version thereof) and the approval of the Merger, and in favor of each of
the other actions specifically contemplated by the Merger Agreement; (ii) not to
vote any of the Subject Shares in favor of any (w) Acquisition Proposal (as
defined below), (x) reorganization, recapitalization, liquidation or winding up
of the Company or any other extraordinary transaction involving the Company,
other than the Merger, (y) corporate action the consummation of which would
frustrate the purposes, or prevent or delay the consummation, of the
transactions contemplated by the Merger Agreement or (z) other matter relating
to, or in connection with, any of the foregoing matters; (iii) not to sell,
assign, transfer, encumber or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the direct or
indirect sale, assignment, transfer, encumbrance or other disposition of, any of
the Subject Shares or any interest therein to a third party transferee, except
to certain related parties and, in the case of the DK/SW Stockholders, to the
Karan-Weiss Foundation, provided that each such related party or the Karan-Weiss
Foundation, as the case may be, executes an agreement substantially similar to
the Voting Agreements, and in the case of DK/SW Stockholders, except to
Acquisition Sub pursuant to the terms of the Exchange and Option Agreement (as
defined below); (iv) not to grant any proxies or enter into any voting trust or
other agreement or arrangement with respect to the voting of any of the Subject
Shares, other than the Voting Agreements; and (v) not to (x) take any action to
initiate, solicit, encourage, negotiate or take any action to facilitate, any
inquiries or the making of any proposal or offer with respect to, or a
transaction to effect, any Acquisition Proposal, (y) engage in discussions with,
or disclose any nonpublic information relating to the Company or any of its
subsidiaries, afford access to the properties, books or records of the Company
or any of its subsidiaries to, or cooperate in any way with, any person that may
be considering making, or has made, an Acquisition Proposal or has agreed to
endorse an Acquisition Proposal or (z) approve or recommend, or propose publicly
to approve or recommend, or execute or enter into, or propose publicly to
approve or enter into, any letter of intent or other agreement related to any
Acquisition Proposal. Acquisition Proposal is defined in the Voting Agreements
to mean any agreement, offer or proposal for, any indication of interest in, or
any submission of inquiries from any person (other than the Merger) for: (i) any
merger, consolidation, share exchange, recapitalization, reorganization,
business combination, or other similar transaction involving the Company or any
of its subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition relating to 25 percent or more of the assets of the Company
and its subsidiaries, taken as a whole, in a single transaction or series of
related transactions; (iii) any sale, transfer, encumbrance, or issuance of 25
percent or more of any class of the outstanding shares of capital stock of the
Company or any of its subsidiaries in a single transaction or series of related
transactions; (iv) any tender offer (including a self-tender) or exchange offer
that, if consummated, would result in any person beneficially owning 25 percent
or more of any class of equity securities of the Company or any of its
subsidiaries; or (v) any other transaction the consummation of which could
reasonably be expected to prevent or materially delay the Merger.
Pursuant to the Merger Agreement and subject to the terms and conditions
therein, the Company agreed to (i) call a special meeting of its stockholders to
vote upon the adoption of the Merger Agreement and approval of the Merger, and
(ii) to prepare and circulate a proxy statement in connection therewith. The
parties to the Merger Agreement agreed to take all necessary action to effect
the Merger. Upon the Merger, the separate corporate existence of Acquisition Sub
will cease and the Company will be the surviving corporation of the Merger (the
"Surviving Corporation").
Upon the filing of the certificate of merger with the Secretary of State of the
State of Delaware or upon such later date as set forth in Section 251 of the
Delaware General Corporation Law ("DGCL") (such date
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and time being the "Effective Time"), (i) each share of Common Stock of the
Company (the "Shares") issued and outstanding immediately prior to the Effective
Time (except for Shares covered under (ii) below) will be converted into the
right to received $10.75 in cash (the "Merger Consideration") without any
interest thereon, less any required withholding taxes; (ii) each Share in the
Company's treasury and Shares owned, directly or indirectly, by the Company,
LVMH Inc. or Acquisition Sub or any wholly owned subsidiary of the Company or
LVMH Inc. will be cancelled and extinguished without any conversion thereof or
payment made with respect thereto; and (iii) each share of common stock, $0.01
par value per share, of Acquisition Sub issued and outstanding immediately prior
to the Effective Time will be converted into one fully paid and non-assessable
share of common stock of the Surviving Corporation and each share of the Series
A preferred stock of Acquisition Sub will be converted into one fully paid and
non-assessable share of Series A preferred stock of the Surviving Corporation.
Immediately prior to the consummation of the Merger, the DK/SW Stockholders will
exchange certain of their Subject Shares for, and shall become holders of,
shares of common stock of Acquisition Sub, as described in more detail below.
At the Effective Time, each option to purchase shares of Common Stock will be
cancelled, and the former holder will have the right to receive from the Company
in cash, with respect to each option, an amount (net of any applicable
withholding tax) equal to the difference between the Merger Consideration and
the per share exercise price of such option to the extent such difference is a
positive number, multiplied by the number of shares of Common Stock subject to
such option.
Shares of Common Stock outstanding immediately prior to the Effective Time and
that are held by stockholders who shall have not voted in favor of the Merger
and who properly shall have demanded appraisal for such shares in accordance
with Section 262 of the DGCL (collectively, the "Dissenting Shares") shall not
be converted into or represent the right to receive the Merger Consideration.
Such stockholders instead shall be entitled to receive payment of the appraised
value of such shares of Common Stock held by them in accordance with the
provisions of Section 262 of the DGCL, except that all Dissenting Shares held by
stockholders who shall have failed to perfect or who effectively shall have
withdrawn or otherwise lost their rights to appraisal of such shares of Common
Stock under Section 262 of the DGCL shall thereupon be deemed to have been
converted into and to have become exchangeable for the right to receive, as of
the Effective Time, the Merger Consideration, without any interest thereon, less
any required withholding taxes.
At the Effective Time, the directors of Acquisition Sub and the officers of the
Company holding office immediately prior to the Effective Time will be the
initial directors and officers, respectively, of the Surviving Corporation. At
the Effective Time, the certificate of incorporation of the Surviving
Corporation will be amended and restated as set forth on Exhibit A to the Merger
Agreement, and the bylaws of the Surviving Corporation will be amended and
restated as set forth on Exhibit B to the Merger Agreement.
The Shares are currently quoted and traded through the New York Stock Exchange,
which constitutes the principal trading market for the Shares. Upon consummation
of the Merger, the Shares will no longer meet the standards for continued
listing on the NYSE.
The Shares are currently registered under the Exchange Act. Such registration
may be terminated upon application of the Company to the Securities and Exchange
Commission if such Shares are not listed on a national securities exchange and
there are fewer than 300 holders of record of the Shares. LVMH Inc. intends to
cause the Surviving Corporation to make an application for termination of
registration of the Shares as soon as possible after consummation of the Merger.
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Immediately after the consummation of the Merger, LVMH Inc. intends to merge its
wholly-owned subsidiary Karma Acquisition, Inc., a Delaware corporation
("Karma"), with and into the Surviving Corporation, with the Surviving
Corporation being the surviving corporation of such merger (also, the "Surviving
Corporation"). Upon completion of the Merger and the subsequent merger with
Karma, LVMH Inc. intends to conduct a detailed review of the Surviving
Corporation and its assets, corporate structure, capitalization, operations,
policies, management and personnel. After such review, the shareholders of the
Surviving Corporation will determine what actions, if any, would be desirable in
light of the circumstances that then exist.
B. THE GABRIELLE PURCHASE AGREEMENT.
LVMH Inc. entered into an agreement (the "Gabrielle Purchase Agreement") dated
December 15, 2000 with Karan, Weiss and the Children's Trust (the "DK/SW
Group"). Pursuant to the Gabrielle Purchase Agreement, the members of the DK/SW
Group sold to Karma all of the outstanding shares of common stock of Gabrielle
Studio, Inc., a New York corporation ("Gabrielle") (a private company which
licenses the Donna Karan trademarks and sublicenses the Donna Karan name to
Donna Karan Studio ("DKS"), a wholly owned subsidiary of the Company, pursuant
to that certain Agreement dated as of July 3, 1996 between Gabrielle and DKS
(the "License Agreement")) for an aggregate purchase price of $450 million
("Purchase Price"), subject to reduction (i) to $400 million (net of certain
taxes) in the event the Company's Board of Directors approves and enters into a
definitive agreement with respect to a merger transaction between the Company
and LVMH Inc. (or any of its affiliates) (a "Board Approved Merger") on or
before the six month anniversary (the "Determination Date") of the date of the
Gabrielle Purchase Agreement and subsequently such Board Approved Merger is
consummated, or (ii) to $425 million (net of certain taxes) in the event the
Company and LVMH Inc. or any of its affiliates enter into a definitive agreement
for a Board Approved Merger during the period after the Determination Date but
on or before one year following the date of the Gabrielle Purchase Agreement and
subsequently such Board Approved Merger is consummated. The Merger Agreement
and, assuming its consummation, the Merger constitute a Board Approved Merger.
C. THE EXCHANGE AND OPTION AGREEMENT.
As contemplated by the Gabrielle Purchase Agreement, the DK Stockholders, LVMH
Inc., Karma and Acquisition Sub entered into an Exchange and Option Agreement
dated as of March 31, 2001 (the "Exchange and Option Agreement"), which provides
that the DK/SW Stockholders will, immediately prior to the consummation of the
Board Approved Merger, exchange (the "Exchange") 3,115,456 Shares, representing
14% of the outstanding shares of Common Stock as of March 28, 2001, for
3,115,456 shares of common stock of Acquisition Sub. Upon the consummation of
the Exchange, LVMH, LVMH Inc., Acquisition Sub and the DK/SW Stockholders will
enter into agreements with respect to the governance and management of the
Surviving Corporation after the Merger and certain rights and obligations with
respect to the ownership of capital stock in the Surviving Corporation. In
addition, the Exchange and Option Agreement provides that the DK/SW Stockholders
shall have the option (i) to purchase from LVMH Inc. 1,895,581 shares of the
Surviving Corporation for aggregate consideration of $22,871,597 and (ii)
provided that the option described in clause (i) has been exercised, to purchase
from the Surviving Corporation shares of newly issued common stock of the
Surviving Corporation for an aggregate price of $25,000,000, which such number
of shares shall be calculated pursuant to the terms of the Exchange and Option
Agreement. Assuming the full exercise of such rights to purchase additional
shares as described in the preceding sentence, the DK Stockholders would own, in
the aggregate, 14.3% of the outstanding shares of common stock of the Surviving
Corporation.
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These brief descriptions of the Merger Agreement, the Voting Agreement, the
Gabrielle Purchase Agreement and the Exchange and Option Agreement and the
rights and obligations of the parties thereunder are not intended to be complete
and are qualified in their entirety by reference to such agreements, which are
annexed hereto and which are incorporated herein by reference.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Pursuant to the Voting Agreements, the Stockholders, who own an aggregate of
10,403,769 Shares (which represent approximately 47% of the issued and
outstanding Shares as of March 28, 2001 based upon 22,253,254 Shares outstanding
at March 28, 2001, as represented by the Company in the Merger Agreement), have
agreed to vote such Shares in favor of the Merger and the Merger Agreement.
By virtue of the Voting Agreements, the Reporting Person may be deemed to be the
beneficial owners of the Shares owned by the Stockholders. The filing of this
Schedule 13D shall not be construed as an admission that the Reporting Person
(or any of its affiliates) is the beneficial owner of such Shares. Except as
otherwise described in this Schedule 13D, the Reporting Person (or any of its
affiliates) does not own or have any right to acquire, directly or indirectly,
any Shares except for the 215,000 shares owned directly by Sofidiv SA.
Except pursuant to the Voting Agreements and the Exchange and Option Agreement,
the Reporting Person has not effected any transaction in the Shares during the
past 60 days.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF ISSUER.
As discussed in Items 3 and 4 above, (i) LVMH Inc. and Acquisition Sub are
parties to the Merger Agreement and the Voting Agreements, (ii) LVMH Inc. is a
party to the Gabrielle Purchase Agreement and (iii) LVMH Inc., Acquisition Sub
and Karma are parties to the Exchange and Option Agreement.
Except for the agreements described in this Schedule 13D, to the best knowledge
of the Reporting Person, there are no contracts, arrangements, understandings or
relationships (legal or otherwise) between the Reporting Person (or its
affiliate) with any other person with respect to any securities of the Company,
including, but not limited to, the transfer or voting of any of the securities,
finder's fees, joint ventures, loans or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding
of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit A. Agreement and Plan of Merger dated as March 31, 2001 by and among
LVMH Moet Hennessy Louis Vuitton Inc., DKI Acquisition, Inc. and Donna Karan
International Inc. incorporated by reference to Exhibit 2.1 of the Form 8-K
filed by Donna Karan International Inc. on April 2, 2001.
Exhibit B. Voting Agreement dated as of March 31, 2001 by and among LVMH Moet
Hennessy Louis Vuitton Inc., DKI Acquisition, Inc., Takihyo Inc., Tomio Taki and
Frank R. Mori.
Exhibit C. Voting Agreement dated as of March 31, 2001 by and among, Donna Karan
International Inc., LVMH Moet Hennessy Louis Vuitton Inc., DKI Acquisition,
Inc., Donna Karan, Stephan Weiss, Trust FBO Lisa Weiss Keyes, Corey Weiss and
Gabrielle Karan U/A/D 2/2/96, 2000 Stephan Weiss Revocable Trust and The Stephan
Weiss and Donna Karan Alaska Community Property Trust incorporated by
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reference to Exhibit B of the Schedule 13D/A filed by the DK/SW Stockholders on
April 3, 2001 (the "April Schedule 13D/A").
Exhibit D. Agreement dated as of December 15, 2000 by and among Donna Karan,
Stephan Weiss, Trust U/A/D February 2, 1996, FBO Lisa Weiss Keyes, Corey Weiss,
and Gabrielle Karan and LVMH Moet Hennessy Louis Vuitton Inc., together with
Annex A, attached thereto (as redacted) incorporated by reference to Exhibit E
of the Schedule 13D/A filed by the DK/SW Stockholders on December 19, 2000.
Exhibit E. Exchange and Option Agreement dated as of March 31, 2001 by and among
LVMH Moet Hennessy Louis Vuitton Inc., DKI Acquisition, Inc., Karma Acquisition
Inc., Donna Karan, Stephan Weiss, Trust FBO Lisa Weiss Keyes, Corey Weiss and
Gabrielle Karan U/A/D 2/2/96, 2000 Stephan Weiss Revocable Trust and The Stephan
Weiss and Donna Karan Alaska Community Property Trust incorporated by reference
to Exhibit C of the April Schedule 13D/A.
SIGNATURES
AFTER REASONABLE INQUIRY AND TO THE BEST KNOWLEDGE AND BELIEF OF THE
UNDERSIGNED, THE UNDERSIGNED CERTIFIES THAT THE INFORMATION SET FORTH IN THIS
STATEMENT IS TRUE, COMPLETE AND CORRECT.
DATED: APRIL 10, 2001
LVMH MOET HENNESSY LOUIS VUITTON S.A.
BY: /s/ Bernard Kuhn
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ANNEX A
DIRECTORS AND EXECUTIVE OFFICERS
The names of the members of the boards of directors and Executive Officers of
LVMH, Sofidiv, Inc., LVMH Inc. and MPG and their present principal occupations
are set forth below. Unless otherwise indicated, each individual is a citizen of
the French Republic and the business address of each person is the address of
the respective company with which such person is associated.
1. LVMH MOET HENNESSY LOUIS VUITTON S.A.
30, avenue Hoche
75008 Paris France
NAME AND POSITION HELD PRINCIPAL OCCUPATIONS
Bernard Arnault Chairman and CEO of LVMH,
- Director; Chairman and CEO Chairman and CEO of Christian Dior S.A.
- Executive Committee member
Antoine Bernheim Partner of Lazard, LLC, Wilmington
- Director; Vice-Chairman
Jean Arnault Director of Financiere Agache
- Director
Nicolas Bazire Managing Director, Groupe Arnault S.A.
- Director
- Executive Committee member, Development
and Acquisitions
Nicholas Clive Worms Chairman of the Supervisory Board of
- Director Worms & Cie, Paris
Michael Francois-Poncet Vice-Chairman of BNP-Paribas, Paris
- Director
Albert Frere Chairman and CEO of Frere-Bourgeois
- Director Loverval (Belgique)
Belgian Citizen
Pierre Gode Chairman and CEO of Financiere Agache, Paris
- Director Member of the Executive Board of LVMH
- Executive Committee member, Advisor to Fashion Group, Paris
the Chairman and CEO
Cornelius van Der Hoeven Chairman and CEO of Royal Ahold
- Director Netherlands
Dutch citizen
Gilles Hennessy Member of the Executive Board of JA
A-1
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- Director Hennessy & Co., Cognac
(France)
Jean Peyrelevade Chairman and CEO of Credit Lyonnais
- Director
Jean-Marie Messier Chairman and CEO of Vivendi
- Director Universal, Paris
Lord Powell of Bayswater Director of Matheson & Co. Ltd.
- Director London
British citizen
Edward Brennan CEO of DFS
- Executive Committee member, DFS
Yves Carcelle Chairman of the Executive Board of
- Executive Committee member, Fashion LVMH Fashion Group, Paris
and Leather Goods
Patrick Choel Senior Vice-President of LVMH
- Executive Committee member, Fragrances
and Cosmetics
Patrick Houel CFO of LVMH
- Executive Committee member, Finance
Concetta Lanciaux Senior Vice President of LVMH, Human Resources
- Executive Committee member, Human Resources
Pierre Letzelter Senior Vice-President of LVMH
- Executive Committee member, Selective
Distribution Group
Philippe Pascal Chairman and CEO of Moet Hennessy
- Executive Committee member, Wines and Spirits
Daniel Piette Senior Vice President of LVMH
- Executive Committee member, LV Capital
Bernard Rolley Senior Vice President of LVMH
- Executive Committee member, Operations
Christian Viros Senior Vice President of LVMH
- Executive Committee member, Watches and Jewelry
Myron Ullman Managing Director of LVMH
- Executive Committee member, Group Managing
Director
- U.S. citizen
A-2
12
2. MONTAIGNE PARTICIPATIONS ET GESTION
30, avenue Hoche
75008 Paris France
NAME AND POSITION HELD PRINCIPAL OCCUPATIONS
Bernard Arnault Chairman and CEO of LVMH
- Chairman and CEO Chairman and CEO of Christian Dior S.A.
Jean Arnault Director of Financiere Agache
- Director
Nicolas Bazire Managing Director, Groupe Arnault S.A.
Jean-Paul Amiel -
Pierre Gode Chairman and CEO of Financiere Agache,
Paris
Member of the Executive Board of LVMH
Fashion Group, Paris
Lord Powell of Bayswater Director of Matheson & Co. Ltd., London
3. LVMH MOET HENNESSY LOUIS VUITTON INC.
19 East 57th Street, Fifth Floor
New York, New York 10022
NAME AND POSITION HELD PRINCIPAL OCCUPATIONS
Pierre Gode Member of the Executive Board
- Director of LVMH Fashion Group, Paris
- President Chairman and CEO of Financiere Agache, Paris
Patrick Houel CFO of LVMH
- Director
Bernard Rolley Senior Vice President of LVMH
- Director
Bruce G. Ingram Senior Vice President and CFO of LVMH Inc.
- Executive Officer
- U.S. citizen
Louise Firestone Vice President, Legal Affairs, of LVMH Inc.
- Executive Officer
- U.S. citizen
Michael T. Folkman Vice President, Taxes, of LVMH Inc.
- Executive Officer
- U.S. citizen
Thomas Ryan Vice President, Real Estate Development,
- Executive Officer of LVMH Inc.
- U.S. citizen
Marion Vidalenche Vice President, Finance, of LVMH Inc.
- Executive Officer
- U.S. citizen
4. SOFIDIV S.A.
30, avenue Hoche
75008 Paris France
NAME AND POSITION HELD PRINCIPAL OCCUPATIONS
Patrick Houel CFO of LVMH
- Director; Chairman and CEO
Pierre Gode Chairman and CEO of Financiere Agache, Paris
- Director Member of the Executive Board of
LVMH Fashion Group, Paris
Daniel Piette Senior Vice President of LVMH
- Director
A-3
13
[Exhibit B]
VOTING AGREEMENT
AGREEMENT, dated as of March 31, 2001 among LVMH Moet Hennessy Louis
Vuitton Inc., a Delaware corporation ("LVMH"), DKI Acquisition, Inc., a Delaware
corporation ("ACQUISITION SUB"), Takihyo Inc., a Delaware corporation
("Takihyo"), Tomio Taki ("TAKI") and Frank R. Mori ("MORI", and collectively
with Takihyo and Taki, the "STOCKHOLDERS").
WHEREAS, concurrently with the execution and delivery of this
Agreement, LVMH, Acquisition Sub and Donna Karan International Inc., a Delaware
corporation (the "COMPANY") are entering into an Agreement and Plan of Merger
(as the same may be amended from time to time, the "MERGER AGREEMENT"),
providing for, among other things, the merger of Acquisition Sub with and into
the Company;
WHEREAS, the Board of Directors of the Company has approved this
Agreement, the Merger Agreement and the Merger;
WHEREAS, as of the date of this Agreement, each Stockholder is the
owner (either beneficially or of record) of the number of shares of (i) Common
Stock of the Company, par value $0.01 per share, (ii) Class A Common Stock of
the Company, par value $0.01 per share, and (iii) Class B Common Stock of the
Company, par value $0.01 per share (collectively, "COMPANY COMMON STOCK"), as is
set forth opposite such Stockholder's name on Schedule A to this Agreement (all
such shares and any shares of Company Common Stock hereafter acquired or
received by such Stockholder by any means whatsoever prior to the termination of
this Agreement, "SHARES"); and
WHEREAS, in order to induce LVMH and Acquisition Sub to enter into the
Merger Agreement, the Stockholders have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
14
ARTICLE 1
GRANT OF PROXY; VOTING AGREEMENT
SECTION 1.1. Voting Agreement. Provided that the Merger Agreement has
not previously been terminated, each Stockholder hereby agrees to vote all
Shares that such Stockholder is entitled to vote at the time of any vote to
approve and adopt the Merger Agreement, the Merger and all agreements related to
the Merger and any actions related thereto at any meeting of the stockholders of
the Company, and at any adjournment thereof, at which such Merger Agreement and
other related agreements (or any amended version thereof), or such other
actions, are submitted for the consideration and vote of the stockholders of the
Company. Each Stockholder hereby agrees that it will vote all Shares against the
approval of any (i) Acquisition Proposal, (ii) reorganization, recapitalization,
liquidation or winding up of the Company or any other extraordinary transaction
involving the Company or (iii) corporate action the consummation of which would
frustrate the purposes, or prevent or delay the consummation, of the
transactions contemplated by the Merger Agreement. None of the Stockholders
shall enter into any agreement or understanding, whether oral or written, with
any person or entity prior to the termination of this Agreement to vote its
Shares in a manner inconsistent with this Section 1.01. Notwithstanding any
provision of this Agreement to the contrary, nothing in this Agreement shall
limit or restrict any Stockholder voting in such Stockholder's sole discretion
on any matter other than those matters referred to in this Section.
SECTION 1.2. Irrevocable Proxy. Each Stockholder hereby revokes any and
all previous proxies granted with respect to the Shares. By entering into this
Agreement, each Stockholder hereby grants a proxy appointing Bruce Ingram, the
Senior Vice President, Finance of LVMH and Louise Firestone, the Vice President,
Legal Affairs and General Counsel of LVMH, each individually, as the
Stockholder's attorney-in-fact and proxy, with full power of substitution, for
and in the Stockholder's name, to vote, express, consent or dissent, or
otherwise to utilize such voting power in the manner contemplated by Section
1.01 above as LVMH or its proxy or substitute shall, in LVMH's sole discretion,
deem proper with respect to the Shares. The proxy granted by each Stockholder
pursuant to this Article 1 is irrevocable and is granted in consideration of
LVMH entering into this Agreement and the Merger Agreement and incurring certain
related fees and expenses. The proxy granted by each Stockholder shall be
revoked upon termination of this Agreement in accordance with its terms.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder represents and warrants (only with respect to such
Stockholder and Shares owned by such Stockholder) to LVMH and Acquisition Sub
that:
SECTION 2.1. Authorization. Takihyo is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
SECTION 2.2. Authority of Stockholders. Each of the Stockholders has
full legal capacity, and, in the case of Takihyo, full corporate power, to enter
into, execute and perform this Agreement. The execution and delivery by the
Stockholders of this Agreement and the performance by the Stockholders of their
obligations hereunder and the consummation of the transactions contemplated
hereby have been duly authorized and approved by all requisite trust, corporate
or other applicable entity action. This Agreement has been duly executed and
delivered by a duly authorized trustee, officer, manager or other appropriate
authority of Takihyo. This Agreement constitutes a valid and legally binding
obligation of each of the Stockholders, enforceable against each of the
Stockholders in accordance with its terms (except to the extent that enforcement
may be affected by laws relating to bankruptcy, reorganization, insolvency and
creditors' rights and by the availability of injunctive relief, specific
performance and other equitable remedies).
SECTION 2.3. Consents. No consent, waiver, authorization, order or
approval of, or filing or registration with any Governmental Authority or other
Person, or under or with respect to any permit, license, contract, agreement or
other instrument to which any of the Stockholders is a party or by which any of
the Stockholders is, or their respective assets are, bound or affected, is
required for or in connection with the execution and delivery by any of the
Stockholders of this Agreement and the consummation by any of the Stockholders
of the transactions contemplated hereby.
SECTION 2.4. Non-Contravention. Neither the execution and delivery of
this Agreement by any of the Stockholders, nor the consummation by any of the
Stockholders of the transactions contemplated hereby, will (i) violate, conflict
with or result in a breach of any federal, state, local or foreign statute, law,
ordinance, rule, code, order or regulation of any Governmental Authority or any
order, ruling, writ, injunction, judgment, award determination or decree of any
court, arbitral body or Governmental Authority to which any of the Stockholders
is a party or by which any of the Stockholders is bound, (ii) with respect to
Takihyo, violate, conflict with or result in a breach of any of the terms,
conditions or provisions of its articles of incorporation, by-laws or other
constituent documents or (iii) violate, conflict with, result in a breach of, or
constitute a default (or event which with the giving of notice or the passage of
time, or both, would become a default) under, require a consent under, or give
to others any rights of termination, amendment,
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acceleration, suspension, revocation or cancellation of, or result in the
creation of any Claims or Permitted Encumbrances on any of the assets or
properties of any of the Stockholders pursuant to or result in any payment or
charge under, any permit, license, contract or agreement to which any
Stockholder is a party or by which any Stockholder, or any of such Stockholder's
assets or properties, is bound or affected, and no such permit, license,
contract or agreement shall prohibit or delay the timely performance by the
Stockholders of any of their obligations under this Agreement.
SECTION 2.5. Ownership of Shares. As of the date of this Agreement,
each Stockholder owns its Shares beneficially and of record, and except for such
Shares, such Stockholder does not beneficially or of record own any (i) shares
of capital stock or voting securities of the Company, (ii) securities of the
Company convertible into or exchangeable for shares of capital stock or voting
securities of the Company or (iii) options or other rights to acquire from the
Company any capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of the Company. Other than
as set forth in the Shareholders Agreement dated as of June 10, 1996 among the
Company, certain of the Stockholders, and certain other parties thereto (which
agreement has not been amended or modified as of the date hereof) (the
"SHAREHOLDERS AGREEMENT"), each Stockholder has sole voting power, sole power of
disposition, sole power to demand appraisal rights and all other stockholder
rights with respect to all of its Shares, with no restrictions on such
Stockholder's rights of voting or disposition pertaining thereto, other than
restrictions on disposition pursuant to applicable securities laws. Other than
the Shareholders Agreement, there are no outstanding subscriptions, options,
warrants, rights (including preemptive rights), calls, or other agreements or
commitments of any character relating to the Shares or to any corporate
governance matters. Each Stockholder has good, valid and marketable title to its
Shares, free and clear of all Claims and Permitted Encumbrances. Takihyo has
full corporate power and authority to own the Shares owned by it.
SECTION 2.6. Finder's Fees. No investment banker, broker, finder or
other intermediary is entitled to a fee or commission from the Company, LVMH or
Acquisition Sub in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of such Stockholder.
4
17
ARTICLE 3
COVENANTS OF STOCKHOLDERS
Each Stockholder hereby covenants and agrees that:
SECTION 3.1. No Proxies for or Encumbrances on Shares. Except pursuant
to the terms of this Agreement, such Stockholder shall not, without the prior
written consent of LVMH, directly or indirectly, (i) grant any proxies or enter
into any voting trust or other agreement or arrangement with respect to the
voting of any Shares or (ii) sell, assign, transfer, encumber or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment, transfer,
encumbrance or other disposition of, any Shares or any interest therein during
the term of this Agreement. Each Stockholder shall not seek or solicit any such
sale, assignment, transfer, encumbrance or other disposition or any such
contract, option or other arrangement or understanding and agrees to notify LVMH
promptly, and to provide all details requested by LVMH, if such Stockholder
shall be approached or solicited, directly or indirectly, by any Person with
respect to any of the foregoing; provided that the foregoing shall not obligate
Mori to take any such action nor prevent Mori from taking any such actions if he
determines in good faith after consultation with independent legal counsel that
taking such action or failing to so act would reasonably be expected to
constitute a breach of his fiduciary duty as a director of the Company.
SECTION 3.2. Other Offers. (a) Each Stockholder shall not, and will use
his, her or its reasonable best efforts to cause their Representatives not to,
directly or indirectly, (i) take any action to initiate, solicit, encourage,
negotiate or take any action to facilitate, any inquiries or the making of any
proposal or offer with respect to, or a transaction to effect, any Acquisition
Proposal, (ii) engage in discussions with, or disclose any nonpublic information
relating to the Company or any of its Subsidiaries, afford access to the
properties, books or records of the Company or any of its Subsidiaries to, or
cooperate in any way with, any Person that may be considering making, or has
made, an Acquisition Proposal or has agreed to endorse an Acquisition Proposal
or (iii) approve or recommend, or propose publicly to approve or recommend, or
execute or enter into, or propose publicly to approve or enter into, any letter
of intent or other agreement related to any Acquisition Proposal; provided that
the foregoing shall not limit or prohibit Mori from participating in discussions
with the Board of Directors of the Company if he determines in good faith after
consultation with independent legal counsel that the failure to so act would
reasonably be expected to constitute a breach of his fiduciary duty as a
director of the Company.
(b) Each Stockholder will promptly notify LVMH after receipt of an
Acquisition Proposal or any indication that any Person is considering making an
Acquisition Proposal or any request for nonpublic information relating to the
Company or any of its Subsidiaries or for access to the properties, books or
records of the Company or any of its Subsidiaries by any Person that may be
considering making, or has made, an Acquisition Proposal indicating, in
connection with such notice, the name of such Person and the material terms and
conditions of
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any such Acquisition Proposal, indication or request and will keep LVMH fully
informed of the status and details of any such Acquisition Proposal, indication
or request; provided, however, that in the case of Mori, no such disclosure or
delivery of such notice shall be required if it would reasonably be expected to
constitute a breach of his fiduciary duty as a director of the Company (as
reasonably determined by Mori after taking into account the advice of his
independent legal counsel).
SECTION 3.3. Appraisal Rights. Each Stockholder shall not exercise any
rights (including, without limitation, under Section 262 of the General
Corporation Law of the State of Delaware) to demand appraisal of any of his, her
or its Shares which may arise with respect to the Merger.
SECTION 3.4. Amendments to the Merger Agreement. In the event that
LVMH, Acquisition Sub and the Company enter into an amendment to the Merger
Agreement that does not alter or modify the economic terms or form of
consideration, each Stockholder covenants and agrees that it shall enter into an
amendment to this Agreement in accordance with Section 4.02 that shall reflect,
to the extent appropriate, the terms of such amended Merger Agreement.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1. Further Assurances. Each of the LVMH, Acquisition Sub and
the Stockholders will execute and deliver, or cause to be executed and
delivered, all further documents and instruments reasonably necessary, proper or
advisable under applicable laws and regulations, to carry out the purpose and
intent of this Agreement.
SECTION 4.2. Amendments; Termination. Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement or
in the case of a waiver, by the party against whom the waiver is to be
effective. 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, will 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. This Agreement shall terminate on the earlier of (i) the date of
consummation of the Merger and (ii) the date of termination of the Merger
Agreement in accordance
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with its terms. Upon any termination of this Agreement, this Agreement shall
thereupon become void and of no further force and effect, and there shall be no
liability in respect of this Agreement on the part of any party hereto or any of
such party's Representatives; provided, however, that nothing herein shall
relieve any party from any liability for such party's willful breach of this
Agreement.
SECTION 4.3. Indemnification. LVMH agrees to indemnify and hold each
Stockholder and in the case of Takihyo, each of Takihyo's officers, directors,
employees, affiliates and representatives, harmless from and against any claims,
liabilities or expenses (including reasonable attorneys' fees) arising out of
any suit, action or proceeding brought by or on behalf of any stockholder of the
Company (including any derivative action brought by any such stockholder on
behalf of the Company), alleging damage by reason of the grant by such
Stockholder of the irrevocable proxy or by reason of the Merger Agreement and
other agreements and transactions contemplated hereby and thereby, provided that
LVMH shall not be obligated to indemnify any Stockholder under this Section for
any claim, liability or expense arising from (i) the bad faith or gross
negligence of any Stockholder or (ii) the breach by any Stockholder of this
Agreement. Each Stockholder agrees to notify LVMH and Acquisition Sub promptly
after the receipt by such Stockholder of written notice of any suit, action or
proceeding, or any threat thereof, and LVMH or Acquisition Sub shall be entitled
to assume the defense thereof at its own expense and through counsel selected by
it. If any legal action or other legal proceeding relating to this Agreement or
the enforcement of any provision of this Agreement is brought against any
Stockholder and the party bringing such action or proceeding does not fully
prevail, LVMH shall be entitled to recover reasonable attorneys' fees, costs and
expenses of such action or proceeding (in addition to any other relief to which
LVMH or such Stockholder may be entitled).
SECTION 4.4. Expenses. LVMH shall pay all reasonable out-of-pocket
costs and expenses (including reasonable attorneys' fees) incurred by the
Stockholders in connection with this Agreement.
SECTION 4.5. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other parties hereto, except that LVMH and
Acquisition Sub may transfer or assign their rights and obligations to any of
their respective direct wholly-owned subsidiaries, to the extent and for so long
as such entities remain direct wholly-owned subsidiaries.
SECTION 4.6. Governing Law; Jurisdiction and Venue. This Agreement
shall be construed in accordance with and governed by the laws of the State of
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Delaware regardless of the laws that might otherwise govern under applicable
principles of conflicts of law.
SECTION 4.7. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
SECTION 4.8. Severability. If any term, provision or covenant of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions and
covenants of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
SECTION 4.9. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement is
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof in addition to any other
remedy to which they are entitled at law or in equity.
SECTION 4.10. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other right, power or remedy by such party.
SECTION 4.11. Directors and Officers. Notwithstanding anything to the
contrary in this Agreement, in the case of Mori, nothing in this Agreement is
intended or shall be construed to require that Mori, in his capacity as a
director of the Company, to act or fail to act in accordance with his fiduciary
duties in such capacity (it being understood that this Agreement shall apply to
Mori solely in his capacity as a stockholder of the Company). Furthermore, no
Stockholder who is or becomes (during the term hereof) a director or officer of
the Company makes any agreement or understanding herein in his or her capacity
as a director or officer, and nothing herein will limit or affect, or give rise
to any liability to any Stockholder in such Stockholder's capacity as a director
or officer of the Company. For the avoidance of doubt, nothing in this Section
4.11 shall in any way limit, modify or abrogate any of the obligations of the
Stockholders hereunder to vote the Shares in accordance with the terms of this
Agreement and to not transfer any Shares except as permitted hereunder.
SECTION 4.12. Construction. Whenever used in this Agreement, the
singular shall include the plural and vice versa (where applicable), the use of
the
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masculine, feminine or neuter gender shall include the other genders (unless the
context otherwise requires), the words "hereof," "herein," "hereto," "hereby,"
"hereunder" and other words of similar import refer to this Agreement as a whole
(including all schedules and exhibits), the words "include," "includes" and
"including" shall mean "include, without limitation," "includes, without
limitation" and "including, without limitation," respectively. Each party has
been represented by its own counsel in connection with the negotiation and
preparation of this Agreement and, consequently, each party hereby waives the
application of any rule of law to the effect that any provision of this
Agreement shall be interpreted or construed against the party whose counsel
drafted that provision.
SECTION 4.13. Capitalized Terms. Capitalized terms used but not defined
herein shall have the respective meanings set forth in the Merger Agreement.
SECTION 4.14. Entire Agreement. This Agreement constitutes the entire
agreement between the parties relating to the subject matter hereof.
SECTION 4.15. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by facsimile or courier, or by registered or certified mail (postage
prepaid, return receipt requested) to such party at its address set forth below:
If to any Stockholder:
Takihyo Inc.
45 West 45th Street
New York, NY 10036
Attention: Frank R. Mori
Fax: (212) 302-4507
If to LVMH or Acquisition Sub:
LVMH Moet Hennessy Louis Vuitton Inc.
19 East 57th Street, Fifth Floor
New York, New York 10022, USA
Attention: General Counsel
Fax: (212) 340-7620
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
LVMH MOET HENNESSY LOUIS
VUITTON INC.
By: /s/ Bruce G. Ingram
--------------------------------
Name: Bruce G. Ingram
Title: Senior Vice President
DKI ACQUISITION, INC.
By: /s/ Bruce G. Ingram
--------------------------------
Name: Bruce G. Ingram
Title: President
23
/s/ Tomio Taki
------------------------------------
Tomio Taki
/s/ Frank R. Mori
------------------------------------
Frank R. Mori
TAKIHYO INC.
By: /s/ Frank R. Mori
--------------------------------
Name: Frank R. Mori
Title: President
24
SCHEDULE A
-------------------------------------------------------------------------
CLASS AND NUMBER OF SHARES
--------------------------- -------------------------------------
STOCKHOLDER OF COMPANY COMMON STOCK HELD
-------------------------------------------------------------------------
Tomio Taki 1,101,293 shares of Common Stock
1 share of Class B Common Stock
-------------------------------------------------------------------------
Frank R. Mori 875,567 shares of Common Stock
1 share of Class B Common Stock
-------------------------------------------------------------------------
Takihyo Inc. 3,183,881 shares of Common Stock
-------------------------------------------------------------------------