EXECUTION COPY
Exhibit 4.2
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement, dated as of July 4, 1998, is
among XXXXXXXX'X, INC., a Tennessee corporation ("Parent"), and
the individuals and other parties listed on Schedule A hereto
(each, a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, Parent, FIFTH MERGER CORPORATION, a Delaware
corporation ("Sub"), and SAKS HOLDINGS, INC. (the "Company"),
propose to enter into an Agreement and Plan of Merger dated as of
the date hereof (as the same may be amended or supplemented, the
"Merger Agreement"; capitalized terms used but not defined herein
shall have the meanings set forth in the Merger Agreement)
providing for the merger of Sub with and into the Company; and
WHEREAS, each Stockholder owns the number of shares of
Company Common Stock set forth on Schedule A hereto (such shares
of Company Common Stock, together with any other shares of
capital stock of the Company acquired by such stockholder after
the date hereof and during the term of this Agreement, being
collectively referred to herein as the "Subject Shares" of such
Stockholder); and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Parent has requested that each Stockholder
enter into this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of Each
Stockholder. Each Stockholder hereby, severally and not jointly,
represents and warrants to the Parent as of the date hereof in
respect of itself as follows:
(a) Authority; Execution and Delivery; Enforceability. The
Stockholder has all requisite power and authority to execute this
Agreement and to consummate the transactions contemplated
hereby. The execution and delivery by the Stockholder of this
Agreement and consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the
part of the Stockholder. The Stockholder has duly executed and
delivered this Agreement, and this Agreement constitutes the
legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms.
The execution and delivery by the Stockholder of this Agreement
do not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict
with, or result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right
of termination, cancellation or acceleration of any obligation or
to loss of a material benefit under, or to increased, additional,
accelerated or guaranteed rights or entitlements of any person
under, or result in the creation of any lien upon any of the
properties or assets of the Stockholder under, any provision of
any contract to which the Stockholder is a party or by which any
properties or assets of the Stockholder are bound or, subject to
the filings and other matters referred to in the next sentence,
any provision of any judgment or applicable law applicable to the
Stockholder or the properties or assets of the Stockholder. No
consent of, or registration, declaration or filing with, any
Governmental Entity is required to be obtained or made by or with
respect to the Stockholder in connection with the execution,
delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby, other than (i) compliance
with and filings under the HSR Act, if applicable to the
Stockholder's receipt in the Merger of Parent Common Stock, and
(ii) such reports under Sections 13(d) and 16 of the Exchange Act
as may be required in connection with this Agreement and the
transactions contemplated hereby.
(b) The Subject Shares. The Stockholder is the record and
beneficial owner of, or is the trustee of a trust that is the
record holder of, and whose beneficiaries are the beneficial
owners of, and has good and marketable title to, the Subject
Shares set forth opposite its name on Schedule A attached hereto,
free and clear of any liens. The Stockholder does not own, of
record or beneficially, or have any voting or dispositive control
in respect of, any shares of capital stock of the Company other
than the Subject Shares set forth on Schedule A. The Stockholder
has the sole right to vote the Subject Shares set forth opposite
its name on Schedule A, and none of such Subject Shares is
subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting of such Subject Shares,
except as contemplated by this Agreement.
SECTION 2. Representations and Warranties of the Parent.
The Parent hereby represents and warrants to each Stockholder as
follows: The Parent has all requisite corporate power and
authority to execute this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by
the Parent of this Agreement and consummation of the transactions
contemplated hereby have been duly authorized by all necessary
action on the part of the Parent. The Parent has duly executed
and delivered this Agreement, and this Agreement constitutes the
legal, valid and binding obligation of the Parent, enforceable
against the Parent in accordance with its terms. The execution
and delivery by the Parent of this Agreement do not, and the
consummation of the transactions contemplated hereby and
compliance with the terms hereof will not, conflict with, or
result in any violation of, or default (with or without notice or
lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to
loss of a material benefit under, or to increased, additional,
accelerated or guaranteed rights or entitlements of any person
under, or result in the creation of any lien upon any of the
properties or assets of the Parent under, any provision of any
contract to which the Parent is a party or by which any
properties or assets of the Parent are bound or, subject to the
filings and other matters referred to in the next sentence, any
provision of any judgment or applicable law applicable to the
Parent or the properties or assets of the Parent. No consent of,
or registration, declaration or filing with, any Governmental
Entity is required to be obtained or made by or with respect to
the Parent in connection with the execution, delivery and
performance of this Agreement or the consummation of the
transactions contemplated hereby, other than (i) compliance with
and filings under the HSR Act in connection with the Merger and
(ii) such reports under section(s) 13(d) and 16 of the Exchange
Act as may be required in connection with this Agreement and the
transactions contemplated hereby.
SECTION 3. Covenants of Each Stockholder. Each
Stockholder, severally and not jointly, covenants and agrees as
follows;
(a) At any meeting of the stockholders of the Company
called to seek the Company Shareholder Approvals or in any other
circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger
Agreement, any other Transaction Agreement, the Merger or any
other transaction contemplated thereby is sought, the Stockholder
shall, including by initiating a written consent solicitation if
requested by the Company, vote (or cause to be voted) the Subject
Shares of the Stockholder in favor of the Company Shareholder
Approvals.
(b) Other than this Agreement, the Stockholder shall not
sell, transfer, pledge, assign or otherwise dispose of (including
by gift) (collectively, "Transfer"), or enter into any contract,
option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, any Subject Shares
to any person other than pursuant to the Merger; provided,
however, that the foregoing requirement shall not be applicable
to any Transfer to any person who agrees to be subject to the
provisions hereof.
(c) The Stockholder shall not, nor shall it authorize or
permit any officer, director or employee of, or any investment
banker, attorney or other adviser or representative of, the
Stockholder to, directly or indirectly solicit, initiate or
encourage the submission of, any Company Takeover Proposal. The
Stockholder promptly shall advise the Parent orally and in
writing of its receipt of any Company Takeover Proposal, the
identity of the person making any such Company Takeover Proposal,
the material terms of any such Company Takeover Proposal and any
changes to such material terms.
(d) The Stockholder shall use its best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done,
and to assist and cooperate with the other parties in doing, all
things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the Merger
and the other Transactions.
(e) The Stockholder hereby consents to and approves the
actions taken by the Company Board in approving the Transaction
Agreements.
SECTION 4. Termination. This Agreement shall terminate
upon the earliest of (i) the Effective Time, (ii) the termination
of the Merger Agreement in accordance with its terms and (iii)
the Termination Date, other than with respect to the liability of
any party for breach hereof prior to such termination.
SECTION 5. Additional Matters.
(a) Each Stockholder shall, from time to time, execute and
deliver, or cause to be executed and delivered, such additional
or further consents, documents and other instruments as the
Parent may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement.
(b) Each Stockholder signs solely in its capacity as the
record holder and beneficial owner of, or the trustee of a trust
whose beneficiaries are the beneficial owners of, such
Stockholder's Subject Shares and nothing herein shall limit or
affect any actions taken by any Stockholder in his capacity as an
officer or director of the Company to the extent specifically
permitted by the Merger Agreement.
SECTION 6. General Provisions.
(a) Amendments. This Agreement may not be amended except by
an instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of
delivery) to the Parent in accordance with Section 8.2 of the
Merger Agreement and to the Stockholders at their respective
addresses set forth on Schedule A hereto (or at such other
address for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section to
this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement. Wherever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to
be followed by the words without limitations.
(d) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by
any rule or law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are
fulfilled to the extent possible.
(e) Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the
same agreement. This Agreement shall become effective against
the Parent when one or more counterparts have been signed by the
Parent and delivered to each Stockholder. This Agreement shall
become effective against any Stockholder when one or more
counterparts have been executed by such Stockholder and delivered
to the Parent. Each party need not sign the same counterpart.
(f) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (i) constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof and (ii) is
not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(g) Governing Law. This Agreement shall he governed by, and
construed in accordance with, the laws of the State of Delaware
regardless of the laws that might otherwise govern under
applicable principles of conflicts of law thereof.
(h) Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be
assigned, in whole or in part, by operation of law or otherwise,
by the Parent without the prior written consent of each
stockholder or by any Stockholder without the prior written
consent of the Parent, and any purported assignment without such
consent shall be void. Subject to the preceding sentences, this
Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and
assigns.
(i) Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Delaware state
court or any Federal court located in the State of Delaware, this
being in addition to any other remedy to which they are entitled
at law or in equity. In addition, each of the parties hereto (i)
consents to submit itself to the personal jurisdiction of any
Delaware state court or any Federal court located in the State of
Delaware in the event any dispute arises out of this Agreement or
any Transaction, (ii) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for
leave from any such court, (iii) agrees that it will not bring
any action relating to this Agreement or any Transaction in any
court other than an Delaware state court or any Federal court
sitting in the State of Delaware and (iv) waives any right to
trial by jury with respect to any claim or proceeding related to
or arising out of this Agreement or any transaction contemplated
hereby.
IN WITNESS WHEREOF, each party has duly executed this
Agreement, all as of the date first written above.
PARENT:
XXXXXXXX'X, INC.,
by
Name:
Title:
SHAREHOLDERS:
SAKS FIFTH AVENUE HOLDINGS II LTD.,
by
Name:
Title:
SAKS FIFTH AVENUE INVESTMENTS II LTD.,
by
Name:
Title:
SFA FOLIO LIMITED,
by
Name:
Title:
SFA LABEL LIMITED,
by
Name:
Title:
SFA COLLECTION LIMITED,
by
Name:
Title:
SFA DESIGNER LIMITED,
by
Name:
Title:
FLAIR LIMITED,
by
Name:
Title:
CHEMICAL NOMINEES (GUERNSEY) LTD.,
by
Name:
Title:
SAKS INVESTMENTS LIMITED,
by
Name:
Title:
SAKS EQUITY LIMITED,
by
Name:
Title:
SFA CAPITAL LIMITED,
by
Name:
Title:
BALLET LIMITED,
by
Name:
Title:
DENARY LIMITED,
by
Name:
Title:
GLEAM LIMITED,
by
Name:
Title:
HIGHLANDS LIMITED,
by
Name:
Title:
NOBLE LIMITED,
by
Name:
Title:
OUTRIGGER LIMITED,
by
Name:
Title:
QUILL LIMITED,
by
Name:
Title:
RADIAL LIMITED,
by
Name:
Title:
SHORELINE LIMITED,
by
Name:
Title:
ZINNIA LIMITED,
by
Name:
Title:
SCHEDULE A
Name of Stockholder Number of Shares of
Company Common Stock Owned
Saks Fifth Avenue Holdings II
Ltd 1,657,899
Saks Fifth Avenue Investments II
Ltd. 1,657,899
SFA Folio Limited 40,207
SFA Label Limited 40,207
SFA Collection Limited 40,207
SFA Designer Limited 40,207
Flair Limited 3,124,914
Chase Nominees (Guernsey) Ltd. 818,440
Saks Investments Limited 24,000
Saks Equity Limited 24,000
SFA Capital Limited 2,250,000
Ballet Limited 1,400
Denary Limited 1,400
Gleam Limited 1,400
Highlands Limited 1,400
Noble Limited 1,400
Outrigger Limited 1,400
Quill Limited 1,400
Radial Limited 1,400
Shoreline Limited 1,400
Zinnia Limited 1,400
