Exhibit 4.13
STOCKHOLDERS AGREEMENT
DATED AS OF
FEBRUARY 26, 1997
AMONG
FS EQUITY PARTNERS II, L.P.
FS EQUITY PARTNERS III, L.P.
FS EQUITY PARTNERS INTERNATIONAL, L.P.
M&P DISTRIBUTING COMPANY
THE LIMITED, INC.
WEARGUARD CORPORATION
THE TJX COMPANIES, INC.
LEEWAY & CO.
NYNEX MASTER TRUST
AND
BRYLANE INC.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................... 2
Section 1.1 Definitions....................................... 2
ARTICLE II RESTRICTIONS ON TRANSFERS............................. 3
Section 2.1 Transfers in Accordance with this Agreement....... 3
Section 2.2 Legend............................................ 3
Section 2.3 Additional Provisions Relating to Transfers....... 5
Section 2.4 Transfers of Common Stock......................... 5
ARTICLE III ADDITIONAL RIGHTS AND OBLIGATIONS OF
STOCKHOLDERS AND THE COMPANY.......................... 5
Section 3.1 Financial Statements.............................. 5
Section 3.2 Confidentiality................................... 6
Section 3.3 Protection of Business; Nonsolicitation........... 6
Section 3.4 Acquisition of Common Stock....................... 8
Section 3.5 Fiscal Year....................................... 8
Section 3.6 Obligation to Sell Securities; Rights of Inclusion 8
ARTICLE IV CORPORATE GOVERNANCE.................................. 10
Section 4.1 Board of Directors................................ 10
Section 4.2 Corporate Actions................................. 12
Section 4.3 Not Applicable to TJX, Leeway or NYNEX............ 12
ARTICLE V TERMINATION........................................... 12
Section 5.1 Termination....................................... 12
ARTICLE VI MISCELLANEOUS......................................... 12
Section 6.1 Remedies.......................................... 12
Section 6.2 Successors and Assigns............................ 13
Section 6.3 No Waivers; Amendments............................ 13
Section 6.4 Notices........................................... 14
Section 6.5 Inspection........................................ 16
Section 6.6 Governing Law..................................... 16
Section 6.7 Section Headings.................................. 16
i.
Page
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Section 6.8 Entire Agreement................................. 16
Section 6.9 Severability..................................... 16
Section 6.10 Counterparts..................................... 17
Section 6.11 TJX's Agreement to be Bound...................... 17
ii.
STOCKHOLDERS AGREEMENT
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This Stockholders Agreement (the "Agreement") is dated as of this 26th
day of February, 1997 among FS Equity Partners II, L.P., a California limited
partnership ("FSEP II"), FS Equity Partners III, L.P., a Delaware limited
partnership ("FSEP III"), FS Equity Partners International, L.P., a Delaware
limited partnership ("FSEP International") (FSEP II, FSEP III and FSEP
International are collectively referred to herein as the "FS Stockholders"), M&P
Distributing Company, a Nevada corporation ("Limited Stockholder"), The Limited,
Inc., a Delaware corporation, WearGuard Corporation, a Delaware corporation
("WearGuard"), Leeway & Co., a Massachusetts partnership, as nominee for the
Long-Term Investment Trust, a trust governed by the laws of the State of New
York ("Leeway"), NYNEX Master Trust, a trust governed by the laws of the State
of New York ("NYNEX") and The TJX Companies, Inc., a Delaware corporation
("TJX") and Brylane Inc., a Delaware corporation (the "Company"). Each of the
FS Stockholders, the Limited Stockholder, WearGuard, NYNEX, Leeway, TJX and any
other Person who shall become a party to or agree to be bound by the terms of
this Agreement after the date hereof is sometimes hereinafter referred to as a
"Stockholder".
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, in the manner contemplated by the Agreement of Limited
Partnership dated as of August 30, 1993 (as amended from time to time, the
"Partnership Agreement") among VGP Corporation, VLP Corporation, Lane Xxxxxx
Direct Holding, Inc. (as the successor corporation to Lane Xxxxxx Direct, Inc.,
Xxxxxx Direct, Inc. and Roaman's, Inc.), WearGuard, NYNEX, Leeway and
Xxxxxxxx'x, Inc., a Massachusetts corporation, (and by which TJX and the Limited
Stockholder have agreed to be bound) the Stockholders acquired 14,926,778 shares
of the common stock of the Company, par value $0.01 per share (the "Common
Stock");
WHEREAS, the parties have agreed that certain aspects of their
relationship as holders of Common Stock of the Company are to be governed by the
terms of this Agreement;
A G R E E M E N T:
- - - - - - - - -
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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Section 1.1 Definitions. As used in this Agreement, the following
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terms have the following meanings:
"Affiliate" means with respect to any Person, any Person directly or
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indirectly controlling, controlled by, or under common control with such other
Person. For purposes of this definition, "control" when used with respect to
any Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" means this Stockholders Agreement, as amended from time to
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time.
"Board" means the Board of Directors of the Company.
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"Business" means the mail order retail business encompassing large
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size women's apparel, moderately priced fashion apparel and related accessories.
"Business Day" means each day other than Saturdays, Sundays and days
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when commercial banks are authorized to be closed for business in New York, New
York.
"Commission" shall mean the Securities and Exchange Commission.
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"Common Stock" shall have the meaning set forth in the preamble.
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"Company" shall have the meaning set forth in the preamble.
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"Competing Business" shall have the meaning set forth in Section 3.3.
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"Xxxxxxx Xxxxxx Funds" shall have the meaning set forth in Section
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3.3.
"FS Nominees" shall have the meaning set forth in Section 4.1.
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"Limited Nominees" shall have the meaning set forth in Section 4.1.
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2.
"Person" means an individual, a corporation, a partnership, an
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association, a trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"Public Offering" shall mean, with respect to the Company, any
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underwritten public offering of equity securities of the Company pursuant to an
effective registration statement under the Securities Act of 1933, as amended.
"Registration Rights Agreement" means that certain Registration Rights
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Agreement dated as of the date hereof by and among the parties hereto.
"Shares" means shares of Common Stock.
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"Stockholder" shall have the meaning set forth in the preamble.
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"The Limited" means The Limited, Inc., a Delaware corporation.
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"Transfer" means, with respect to Shares or any other securities, as
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the case may be, any direct or indirect transfer, sale, assignment, pledge,
hypothecation, encumbrance or other disposition thereof.
"Transferee" means any transferee of Shares in a Transfer.
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ARTICLE II
RESTRICTIONS ON TRANSFERS
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Section 2.1 Transfers in Accordance with this Agreement. No
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Stockholder shall Transfer any Shares, except in compliance with the Securities
Act of 1933, as amended, applicable state securities laws and this Agreement.
Any attempt to Transfer any Shares not in compliance with this Agreement shall
be null and void and the Company shall not, and shall ensure that any transfer
agent shall not, register upon its books any Transfer of Shares by a Stockholder
to any Person except a Transfer in accordance with this Agreement.
Section 2.2 Legend.
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(a) A copy of this Agreement shall be filed with the Secretary of
the Company and kept with the records of the Company. Each of the Stockholders
hereby agrees that each outstanding certificate representing Shares issued to
any Stockholder and any certificate for Shares issued in exchange for any
similarly legended certificate shall bear a legend reading substantially as
follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
3.
AND MAY BE OFFERED AND SOLD ONLY IF SO REGISTERED OR IN A MANNER
EXEMPT FROM REGISTRATION UNDER SUCH ACT. THE SHARES REPRESENTED BY
THIS CERTIFICATE ALSO ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE STOCKHOLDERS AGREEMENT OF BRYLANE INC.
(THE "COMPANY"), DATED AS OF FEBRUARY 26, 1997, COPIES OF WHICH MAY BE
OBTAINED FROM THE COMPANY. NO TRANSFER OF SUCH SHARES WILL BE MADE ON
THE BOOKS OF THE COMPANY UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE
WITH THE TERMS OF SUCH AGREEMENT.
4.
The foregoing legend shall be in addition to any other legend required to be
placed on any certificates for Shares under applicable law.
(b) No Transfer of Shares (other than in a Public Offering, in
accordance with Rule 144 under the Securities Act of 1933, as amended, or to the
Company) shall be effective unless the certificates representing the Shares
issued to the Transferee bear the legend set forth in clause (a) of this
Section.
Section 2.3 Additional Provisions Relating to Transfers. The
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following provisions shall apply to each Transfer permitted under this Article
II:
(a) The Stockholder making a Transfer permitted hereunder shall
be required to pay any and all filing and recording fees, fees of counsel and
accountants and other costs and expenses reasonably incurred by the Company as a
result of such Transfer.
(b) No Transfer by a Stockholder permitted hereunder shall
relieve the transferor Stockholder of any of its obligations or liabilities
under this Agreement arising prior to consummation of such Transfer.
Section 2.4 Transfers of Common Stock. Subject to Sections 2.1, 2.2
-------------------------
and 2.3, any Stockholder may Transfer all or any portion of the Common Stock
held by it, provided that, prior to a Transfer to an Affiliate of a Stockholder,
such Affiliate shall enter into a written agreement to be bound by the terms and
conditions of this Agreement which are applicable to all Stockholders.
ARTICLE III
ADDITIONAL RIGHTS AND OBLIGATIONS
---------------------------------
OF STOCKHOLDERS AND THE COMPANY
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Section 3.1 Financial Statements.
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(a) As soon as practicable following the end of each fiscal year
of the Company but in any event within 90 days after the end of such fiscal
year, the Board shall cause to be prepared and delivered to each Stockholder
statements of income and cash flows for the Company for such fiscal year, and a
balance sheet of the Company as of the end of such fiscal year, in each case
setting forth comparative figures for the preceding fiscal year, and certified
by independent certified public accountants of recognized national standing as
to fairness of presentation, preparation in accordance with generally accepted
accounting principles and consistency.
(b) No later than ten days following the end of each fiscal month
of the Company (other than the last fiscal month of each fiscal year), the
Company shall prepare and deliver to each Stockholder statements of income and
cash flows of the Company
5.
for such month and for the year to date and an unaudited balance sheet of the
Company as of the end of such month, in each case setting forth comparative
figures for the related periods in the prior fiscal year and certified by the
chief financial officer of the Company as to fairness of presentation,
preparation in accordance with generally accepted accounting principles and
consistency; provided that (i) the Board shall use its best efforts to cause
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such monthly financial statements and related materials to be delivered within 5
days of the end of each fiscal month and (ii) in the event that it is not
possible to deliver such financial statements and related information within the
10 day period specified in this Section 3.1(b), the Company shall deliver drafts
of such financial statements and related materials within such 10 day period and
shall deliver the final versions thereof as promptly as possible, but in no
event later than 45 days after the end of the relevant fiscal month.
(c) No later than five days after transmission thereof, the
Company shall deliver to each Stockholder, copies of all financial statements,
proxy statements, notices and reports as the Company shall deliver to its debt
or equity holders or its lenders and copies of all registration statements
(without exhibits), other than Form S-8 or any similar successor form, and all
reports which the Company files with the Commission. The Company shall not be
obligated pursuant to this provision or Section 3.1(d) to deliver to any
Stockholder which competes with any retail or catalogue business conducted by
The Limited as of the date of the Partnership Agreement, any material non-public
information concerning the Marks licensed under the Trademark License Agreement
dated as of August 20, 1993 among the licensors referred to therein and Lane
Xxxxxx Direct Holding, Inc. (as the successor corporation to Lane Xxxxxx Direct,
Inc., Xxxxxx Direct, Inc. and Roaman's, Inc.) as amended from time to time.
(d) At the request of any Stockholder and at such Stockholder's
expense, the Board shall prepare and deliver, or cause to be prepared and
delivered, to each Stockholder, as soon as practicable following such request,
any additional financial information and statements as such Stockholder shall
from time to time reasonably request.
Section 3.2 Confidentiality. All information received pursuant to
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Section 3.1 shall be kept confidential by each Stockholder except for
information which (a) was available to such Stockholder on a non-confidential
basis prior to its provision to such Stockholder under this Agreement, (b)
becomes generally available to the public other than as a result of a disclosure
by such Stockholder, (c) becomes available to such Stockholder on a
nonconfidential basis other than as a result of the provision of such
information under this Agreement or (d) such Stockholder is legally compelled to
disclose.
Section 3.3 Protection of Business; Nonsolicitation.
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(a) The Company and the FS Stockholders each hereby covenant and
agree that for so long as The Limited holds a direct or indirect ownership
interest in the Company representing at least 20% of the Common Stock of the
Company then outstanding, none of the Company, the FS Stockholders or any
Affiliate of such Person shall, directly or indirectly, engage anywhere in the
world in any activities that compete with any business
6.
conducted by The Limited or any of its Affiliates as such businesses are
conducted as of the date of the Partnership Agreement (a "Competing Business");
provided that this Section shall not (i) prevent the Company, the Stockholders
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or any of their Affiliates from engaging anywhere in the world in any activity
that the Business is engaged in on the date of the Partnership Agreement, (ii)
apply to investments by the Company, the Stockholders or any of their Affiliates
in securities of another entity which constitute, in the aggregate, less than 5%
of the outstanding shares of such entity entitled to vote generally in the
election of directors or similar persons, (iii) prohibit the acquisition (by
merger or otherwise) of the securities or assets of a business where the gross
revenues of such business attributable to Competing Businesses constitute less
than 15% of the total gross revenues of such business and where the entry into a
Competing Business is not the principal purpose of such acquisition, (iv) apply
to any Transferee of Common Stock, where the relevant Transfer is effected in
accordance with the terms of this Agreement, (v) prohibit the Company, the
Stockholders or any of their Affiliates from engaging in Competing Businesses
where such Competing Businesses are ancillary to another existing business of
the Company, the Stockholders or any such Affiliate, as the case may be, and
constitute less than 15% of the total gross revenues of such business, (vi)
prohibit the Company from operating outlet stores for its merchandise where (A)
such stores are not operated under either the "Xxxxxx" or "Xxxx Xxxxxx" name (or
any confusingly similar name), (B) tags on merchandise bearing either such name
are removed, clipped or otherwise mutilated to indicate to the customer that
such goods are not first class goods and (C) such stores are not located within
10 miles of a Xxxxxx or Lane Xxxxxx retail store; provided that this Section
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shall not obligate the Company to move a retail store selling such merchandise
if, after the opening of such store, a Xxxxxx or Lane Xxxxxx retail store is
opened within such 10 mile radius, (vii) prohibit FS Equity Partners II, L.P., a
California limited partnership, FS Equity Partners III, L.P., a Delaware limited
partnership, FS Equity Partners International, L.P., a Delaware limited
partnership, or any other investment fund organized by Xxxxxxx Xxxxxx & Co. or
any Affiliate of Xxxxxxx Xxxxxx & Co. (collectively, the "Xxxxxxx Xxxxxx Funds")
or any limited partner of the Xxxxxxx Xxxxxx Funds from owning or acquiring a
Competing Business in transactions not involving the Company or any Stockholder
other than an FS Stockholder (in which case this Section 3.3(a) shall not apply
to such Competing Business), (viii) prohibit a lender to the Company pursuant to
the exercise of remedies under the relevant financing documents or a financial
institution, pension fund, insurance company or other institutional investor
with widely diversified interests (which may include minority, passive interests
in Competing Businesses) from acquiring an interest in the Company, or (ix)
prohibit the Company or any of its subsidiaries (including without limitation
the Partnership) from engaging in the conduct of a mail order retail business
encompassing regular size or large size men's apparel and related accessories so
long as such apparel and accessories are substantially similar to the products
offered by the Partnership's KingSize Division as of October 14, 1996 at price
points substantially similar or lower than those for the comparable products
offered by the KingSize Division as of the date hereof.
(b) For so long as The Limited holds a direct or indirect
ownership interest in the Company representing at least 20% of the Common Stock
of the Company then outstanding, neither the Company nor the FS Stockholders nor
any of their Affiliates
7.
shall, without the prior written approval of The Limited, directly or indirectly
solicit any person who is an employee of The Limited or any Affiliate of The
Limited at any time on or after the date of this Agreement to terminate his or
her relationship with The Limited or any Affiliate of The Limited; provided that
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the foregoing shall not apply to (i) persons hired as a result of the use of an
independent employment agency (so long as the agency was not directed to solicit
such person) or as a result of the use of a general solicitation (such as an
advertisement) not specifically directed to employees of The Limited or any
Affiliate of The Limited, (ii) any Transferee of Common Stock where the relevant
Transfer is effected in accordance with the terms of this Agreement, (iii) any
Competing Business owned or acquired by the Xxxxxxx Xxxxxx Funds or by any
limited partner of the Xxxxxxx Xxxxxx Funds in accordance with clause (vii) of
Section 3.3(a) or (iv) a Stockholder referred to in clause (viii) of Section
3.3(a).
(c) Notwithstanding anything to the contrary contained in this
Section 3.3, the parties expressly agree that the provisions of Section 3.3(a)
and 3.3(b) shall not apply to (i) WearGuard, ARAMARK Corporation, a Delaware
corporation ("ARAMARK") (the parent of WearGuard), or any of their respective
subsidiaries, (ii) TJX, or any of its respective subsidiaries, (iii) Leeway or
any of its Affiliates or (iv) NYNEX or any of its Affiliates.
Section 3.4 Acquisition of Common Stock. No Stockholder shall, and
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no Stockholder (other than Leeway and NYNEX) shall permit any of their
respective Affiliates to, directly or indirectly, authorize or make a tender or
exchange offer for, or purchase or otherwise acquire, or agree or offer to
purchase or otherwise acquire, directly or indirectly, beneficial ownership of
additional Common Stock.
Section 3.5 Fiscal Year. For so long as The Limited holds a direct
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or indirect ownership interest in the Company representing at least 20% of the
Common Stock of the Company then outstanding, the FS Stockholders will direct
their nominees on the Board to take any and all actions necessary to cause the
fiscal and taxable year of the Company to be the fiscal year of The Limited in
effect on the date hereof (which ends on the Saturday closest to January 31 of
each year).
Section 3.6 Obligation to Sell Securities; Rights of Inclusion.
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(a) If the FS Stockholders find a third-party buyer for all of
the Shares held by the FS Stockholders or if the FS Stockholders are required to
sell all their Shares for any reason (whether such sale is by way of purchase,
exchange, merger or other form of transaction), upon the request of the FS
Stockholders, each of WearGuard, Leeway and NYNEX shall sell all of its Shares
on the same terms and conditions as apply to the FS Stockholders' sale, except
that none of WearGuard, Leeway or NYNEX shall be required to make any
representation or warranty in connection with such sale other than as to such
Person's valid ownership of its Shares, free and clear of all liens and
encumbrances other than those arising under applicable securities laws, and such
Person's authority, power and
8.
right to enter into and consummate such sale without violating any other
agreement or instrument.
(b) If the FS Stockholders or any of their Affiliates proposes to
offer, sell, assign, grant a participation in or otherwise transfer (each, a
"Transfer") all or any part of the shares of Common Stock then held by such
Person to any Person (other than a Subsidiary of any of the FS Stockholders)
(each, a "Tag Along Offer"), the FS Stockholders shall provide written notice of
such Tag Along Offer to WearGuard, NYNEX and Leeway. Such notice shall identify
the purchaser, the number of shares of Common Stock proposed to be sold, the
consideration offered and any other material terms and conditions of the Tag
Along Offer. If the offer price consists in part or in whole of consideration
other than cash, the FS Stockholders will provide such information, to the
extent reasonably available to the FS Stockholders, relating to such
consideration as WearGuard, NYNEX or Leeway may reasonably request in order to
evaluate such non-cash consideration.
(c) Each of WearGuard, Leeway and NYNEX shall have the right
("W,L&N Tag Along Right"), exercisable as set forth below, to Transfer, pursuant
to the Tag Along Offer, the Applicable Percentage of its shares of Common Stock
on the same terms and conditions as the FS Stockholders or any of its
Affiliates. For purposes of this paragraph (c), "Applicable Percentage" means,
in connection with any Transfer by the FS Stockholder or any Affiliate of the FS
Stockholders, the percentage of such FS Stockholder's (direct or indirect) total
number of shares of Common Stock to be sold pursuant to such Transfer. Each such
W,L&N Tag Along Right shall be exercisable by delivering written notice to the
FS Stockholders within 25 days after receipt of the Offering Notice. Failure to
exercise such W,L&N Tag Along Right within such 25-day period shall be regarded
as a waiver of such W,L&N Tag Along Right. If the FS Stockholders, directly or
indirectly, transfer shares of Common Stock to an Affiliate, such Affiliate
shall agree in writing to be bound by the provisions of this subsection (c).
(d) Each of WearGuard, Leeway and NYNEX acknowledge and agree
that the FS Stockholders has granted certain tag-along rights ("Management Tag
Along Rights") to certain employees (or former employees) of the Partnership and
its subsidiaries and, as a consequence thereof, in the event WearGuard, Leeway
or NYNEX desire to exercise an W,L&N Tag Along Right with respect to any
Transfer, the Shares transferred by the FS Stockholders, Leeway and NYNEX, as
the case may be, shall be reduced as necessary to accommodate the Management Tag
Along Rights.
(e) The rights and obligations of each of the FS Stockholders,
WearGuard, Leeway and NYNEX under Sections 3.6(a), (b), (c) and (d) hereof shall
not apply in the case of any sale (i) pursuant to a registration statement under
the Securities Act of 1933 ("Act") or (ii) into the public market pursuant to
Rule 144 of the Act.
9.
ARTICLE IV
CORPORATE GOVERNANCE
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Section 4.1 Board of Directors.
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(a) The parties shall use their reasonable best efforts to ensure
that the Board consists of not more than nine members. Subject to Section
4.1(d), the Limited Stockholder shall be entitled, but not required, to nominate
two members (the "Limited Nominees") of the Board. Subject to Section 4.1(d),
the FS Stockholders as a group shall be entitled, but not required, to nominate
three members (the "FS Nominees") of the Board. The initial members of the Board
shall be the members of the Board of Representatives as most recently designated
pursuant to the Partnership Agreement and the Board shall elect such additional
independent members, if any, as may be required under applicable law or stock
exchange requirements or by the National Association of Securities Dealers or
underwriters in connection with Public Offerings. The Limited Stockholder and
any Transferee of the Limited Stockholder agree not to nominate as a member of
the Board any nominee or representative of a Person that competes with any
retail or catalogue business conducted by The Limited or any of its Affiliates
as of the date of the Partnership Agreement.
(b) (i) Each of the Stockholders agrees to vote or cause to be
voted all of the shares beneficially owned or held of record by such Stockholder
at any regular or special meeting of the Stockholders of the Company called for
the purpose of filling positions on the Board, or in any written consent
executed in lieu of such a meeting of stockholders, and agrees to take or cause
to be taken all actions otherwise necessary, to ensure the election to the Board
of the Limited Nominees and the FS Nominees.
(ii) Each of the Company and each Stockholder hereby agrees
to use its best efforts to call, or cause the appropriate officers and directors
of the Company to call, a special meeting of stockholders of the Company and
each Stockholder hereby agrees to vote or cause to be voted all of the Shares
beneficially owned or held of record by such Stockholder for, or to take or
cause to be taken all actions by written consent in lieu of any such meeting
necessary to cause, the removal (with or without Cause) of (A) any Limited
Nominee if the Limited Stockholder requests such director's removal for any
reason, and (B) any FS Nominee if the FS Stockholders request such director's
removal for any reason. The Limited Stockholder or the FS Stockholders shall
have the right to nominate a new nominee in the event any Limited Nominee or FS
Nominee, as the case may be, shall be so removed or shall vacate his
directorship for any reason.
(c) Except as provided in Section 4.1(b)(ii), each Stockholder
hereby agrees that, it will not vote in favor of the removal of any Limited
Nominee or FS Nominee unless such removal shall be for Cause. For the purposes
of this Section 4.1, "Cause" shall mean the willful and continued failure by a
director substantially to perform his duties as a director of the Company, the
willful engaging by a director in conduct which
10.
is demonstrably and materially injurious to the Company, or the director's
conviction of any crime constituting a felony which involves moral turpitude.
(d) Notwithstanding the foregoing (i) at such time as the Limited
Stockholder and any Affiliate of the Limited Stockholder which held Units (as
defined in the Partnership Agreement), shall have sold Common Stock and/or Units
representing or corresponding in aggregate to more than one-half of the Units
held by the Brylane Entities (as defined in the Partnership Agreement) on the
date of the Partnership Agreement, the Limited Stockholder shall be entitled to
nominate no more than one member of the Board, (ii) at such time as the FS
Stockholders or any Affiliate of the FS Stockholders which held Units, shall
have sold Common Stock and/or Units representing or corresponding in the
aggregate to more than one-third of the Units held by FS Limited Partner and FS
General Partner (each as defined in the Partnership Agreement) as a group on the
date of the Closing of the Partnership Agreement, the FS Stockholders as a group
shall be entitled to nominate no more than two members of the Board, (iii) at
such time as the FS Stockholders or any Affiliate of the FS Stockholders which
held Units, shall have sold Common Stock and/or Units representing or
corresponding in aggregate to more than two-thirds of the Units held by FS
Limited Partner and FS General Partner as a group on the date of the Closing (as
defined in the Partnership Agreement) the FS Stockholders as a group shall be
entitled to nominate no more than one member of the Board and (iv) at such time
as the Limited Stockholder or the FS Stockholders shall own less than 5% of the
Common Stock, such Stockholder's right to nominate members of the Board shall
terminate. Units retired in accordance with Section 8.9 of the Partnership
Agreement shall be excluded from any determination under clauses (ii) or (iii)
of this Section 4.1(d). Sales of Common Stock by the Limited Stockholder to any
wholly-owned subsidiary of The Limited shall not be considered to be a sale
under clause (i) of this Section 4.1(d).
(e) For purposes of Section 4.1(d), the direct or indirect
issuance or Transfer to a third party of any capital stock or other ownership
interests in, VGP, VLP, any parent entity of VGP or VLP, the Brylane Entities,
any parent entity of the Brylane Entities or any successor to any of the
foregoing prior to the execution hereof shall be deemed to have been a Transfer
of a corresponding percentage of Units (as such term is defined in the
Partnership Agreement). The preceding sentence shall not apply to issuances of
capital stock of VP Holding Corporation to, or Transfers of capital stock of VP
Holding Corporation by, employees of the Partnership, its subsidiaries or
Wholly-Owned Entities (as such term is defined in the Partnership Agreement).
After execution hereof, the direct or indirect issuance to a third party or
Transfer of any capital stock or other ownership interests in the Limited
Stockholder or any parent entity of the Limited Stockholder shall be deemed to
be a Transfer of the corresponding percentage of shares of Common Stock. The FS
Stockholders shall not be deemed to own shares of Common Stock issued to
employees of the Partnership, its subsidiaries or Wholly-Owned Entities. The
provisions of this Section 4.1(e) shall not apply to sales of stock of, or other
equity interests in, The Limited or any general or limited partner of the FS
Funds or to sales of equity interests in the FS Funds.
11.
Section 4.2 Corporate Actions. The Stockholders each agree that,
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without the consent of (i) the Limited Stockholder in the case of the FS
Stockholders, (ii) the FS Stockholders in the case of the Limited Stockholder
and (iii) both the FS Stockholder and the Limited Stockholder in the case of
WearGuard, Leeway or NYNEX, until one (1) year after the date on which Persons
other than The Limited, the FS Funds, TJX, WearGuard, Leeway, NYNEX and their
respective Affiliates own 20% or more of the then outstanding Common Stock of
the Company, they will vote or cause to be voted all shares of Common Stock
beneficially owned by them against, and the FS Stockholders and the Limited
Stockholder, to the extent permitted by law, will direct their designees on the
Board to vote against, any consolidation, combination or merger of the Company
with or into any other Person or any sale or other transfer of all or
substantially all of the assets of the Company.
Section 4.3 Not Applicable to TJX, Leeway or NYNEX. Notwithstanding
--------------------------------------
anything contained in this Article IV to the contrary, the rights and
obligations contained in Section 4.1(a), (b) and (c) and Section 4.2 shall not
apply to TJX, Leeway or NYNEX.
ARTICLE V
TERMINATION
-----------
Section 5.1 Termination. This Agreement shall terminate upon the
-----------
occurrence of any of the following:
(a) the written agreement of each Stockholder;
(b) the tenth anniversary of the date hereof;
(c) Stockholders together shall own less than 10% of Common Stock
outstanding; or
(d) the dissolution, liquidation or winding up of the Company.
ARTICLE VI
MISCELLANEOUS
-------------
Section 6.1 Remedies. The Company and the Stockholders acknowledge
--------
and agree that in the event of any breach of this Agreement by any one of them,
the Company or the relevant Stockholder or Stockholders, as the case may be,
would be irreparably harmed and could not be made whole by monetary damages.
The Company and the Stockholders accordingly agree (a) to waive the defense in
any action for specific performance that a remedy at law would be adequate and
(b) that the Company and the
12.
Stockholders, in addition to any other remedy to which they may be entitled at
law or in equity, shall be entitled to compel specific performance of this
Agreement.
Section 6.2 Successors and Assigns. This Agreement, and all
----------------------
obligations and rights hereunder, shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns; provided that no rights of any Stockholder under this Agreement may be
--------
assigned and no Person which receives Common Stock as a result of a Transfer
permitted by this Agreement will be bound by the provisions of this Agreement,
except as otherwise provided with respect to an Affiliate pursuant to Section
2.4. For purposes of this Section 6.2, any successor or assignee of NYNEX as a
result of, or in connection with, the consummation of the proposed merger of
Xxxx Atlantic and NYNEX Corporation shall be deemed to be an Affiliate of NYNEX.
Notwithstanding anything contained hereunder to the contrary, Leeway may assign
its rights hereunder to a successor trust or plan in connection with a
reorganization of the Long-Term Investment Trust (or a constituent trust or plan
or the sponsor of a constituent trust or plan), provided that (A) such transfer
--------
shall not materially adversely affect the legal or tax status of the Company,
(B) such transfer does not result in an increase of more than one beneficial
owner of Shares for purposes of Section 3(c)(1) of the Investment Company Act of
1940, and (C) that prior to any such assignment, each such assignee Person shall
enter into a written agreement to be bound by the terms and conditions of this
Agreement applicable to Leeway.
Section 6.3 No Waivers; Amendments.
----------------------
(a) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(b) This Agreement may not be amended, modified or supplemented
other than by a written instrument signed by each party hereto, except that (i)
none of WearGuard, TJX, Leeway and NYNEX shall be required to or entitled to
approve any amendment, modification or supplement to the Agreement, unless such
amendment, modification or supplement to the Agreement would adversely affect
the rights hereunder of WearGuard, TJX, Leeway or NYNEX and (ii) with respect to
any grant of additional rights hereunder or in any other agreement covering the
matters contemplated by the Agreement, Leeway and NYNEX shall be treated
equally.
(c) Any provision of this Agreement may be waived if, but only
if, such waiver is in writing and is signed by the party against whom the
enforcement of such waiver is sought.
13.
Section 6.4 Notices. All notices, requests and other communications
-------
to any party hereunder shall be in writing (including telex, telecopy or similar
writing) and shall be given as follows:
If to the Brylane Inc.
Company, to: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
Telecopy: 000-000-0000
With a copy to: Xxxxxxx & XxXxxxxx
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: 000-000-0000
If to Limited The Limited, Inc.
Stockholder or to Three Limited Parkway
The Limited, to: Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Telecopy: 000-000-0000
With a copy to: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
Telecopy: 000-000-0000
If to the XX Xxxxxxx Spogli & Co.
Stockholders, to: 00000 Xxxxx Xxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Telecopy: 000-000-0000
With a copy to: Xxxxxxx & XxXxxxxx
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: 000-000-0000
14.
If to WearGuard: WearGuard Corporation
c/o ARAMARK Corporation
The ARAMARK Towers
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
If to NYNEX: Mellon Bank, N.A., as Trustee
for NYNEX Master Trust
Xxx Xxxxxx Xxxx Xxxxxx
Xxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxx
Telecopy: (000) 000-0000
with a copy to: NYNEX Asset Management Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: A. Xxx Xxxxxxx
Xxxxx Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
and to: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: I. Xxxxx Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
If to Leeway: Leeway & Co.
c/o AT&T Investment Management Corp.
Xxx Xxx Xxx, Xxxx 0XX000
Xxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to: Xxxxxxxxxx, Sandler, Kohl, et. al.
A Professional Corporation
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
15.
If to TJX: The TJX Companies, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President and General Counsel
Telecopy: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
or to such other address or telecopy number and with such other copies, as such
party may hereafter specify for the purpose by notice to the other parties.
Each such notice, request or other communication shall be effective (a) if given
by telecopy, when such telecopy is transmitted to the telecopy number specified
in this Section and evidence of receipt is received or (b) if given by any other
means, upon delivery or refusal of delivery at the address specified in this
Section 6.4.
Section 6.5 Inspection. So long as this Agreement shall be in
----------
effect, this Agreement and any amendments hereto shall be made available for
inspection by any Stockholder at the principal offices of the Company.
Section 6.6 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the state of Delaware (without regard
to the choice of law provisions thereof).
Section 6.7 Section Headings. The section headings contained in this
----------------
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
Section 6.8 Entire Agreement. This Agreement constitutes the entire
----------------
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes any and all prior agreements and understandings,
written or oral, relating to the subject matter hereof.
Section 6.9 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 jurisdictions, it
being intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
16.
Section 6.10 Counterparts. This Agreement may be signed in
------------
counterparts, each of which shall constitute an original and which together
shall constitute one and the same agreement.
Section 6.11 TJX's Agreement to be Bound. Upon the acquisition of
---------------------------
any shares of Common Stock by TJX, the parties hereto acknowledge that TJX will
be bound by the terms of this Agreement as a Stockholder. Upon TJX's execution
hereof, TJX agrees to be bound by the provisions of Section 3.4 of this
Stockholders Agreement as if it were a Stockholder as of the date hereof.
17.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
FS EQUITY PARTNERS II, L.P.
By: Xxxxxxx Xxxxxx & Co.
Its: General Partner
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: General Partner
FS EQUITY PARTNERS III, L.P.
By: FS Capital Partners, L.P.
Its: General Partner
By: FS Holdings, Inc.
Its: General Partner
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
FS EQUITY PARTNERS INTERNATIONAL,
L.P.
By: FS&Co. International, L.P.
Its: General Partner
By: FS International Holdings Limited
Its: General Partner
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
(Signatures continued on next page)
18.
M&P DISTRIBUTING COMPANY
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Asst. Secretary
BRYLANE INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President, Chief
Financial Officer, Secretary and
Treasurer
THE LIMITED, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance
WEARGUARD CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
THE TJX COMPANIES, INC.
By: /s/ Xxx X. Xxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxx
Title: Senior Vice President
(Signatures continued on next page)
19.
LEEWAY & CO., as nominee for the Long-Term
Investment Trust
By: State Street Bank and Trust, as Trustee for
the Long-Term Investment Trust
By: /s/ Xxxxxx X. Xxxxx Xx.
-----------------------------------------
Name: Xxxxxx X. Xxxxx Xx.
Title: Vice President
NYNEX MASTER TRUST
By: Mellon Bank, N.A., as Trustee for
NYNEX Master Trust, as directed by NYNEX
Corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Associate Counsel
20.
