EXHIBIT 99.1
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 /s/ R. Xxxx Xxxxxx
---------------------------------
Name: R. Xxxx Xxxxxx
Title: Chairman of the Board
and Chief Executive Officer
STOCKHOLDERS:
SAKS FIFTH AVENUE HOLDINGS II LTD.,
by /s/ Xxxxxx Xxxxxx
---------------------------------
Name: The Director Ltd.
Title: Director
SAKS FIFTH AVENUE INVESTMENTS II LTD.,
by /s/ Xxxxxx Xxxxxx
---------------------------------
Name: The Director Ltd.
Title: Director
SFA FOLIO LIMITED,
by /s/ Xxx Xxxxxxxx
---------------------------------
Name: Martonmere Services Ltd.
Title: Director
SFA LABEL LIMITED,
by /s/ Xxx Xxxxxxxx
---------------------------------
Name: Martonmere Services Ltd.
Title: Director
SFA COLLECTION LIMITED,
by /s/ Xxx Xxxxxxxx
---------------------------------
Name: Martonmere Services Ltd.
Title: Director
SFA DESIGNER LIMITED,
by /s/ Xxx Xxxxxxxx
---------------------------------
Name: Martonmere Services Ltd.
Title: Director
FLAIR LIMITED,
by /s/ Xxxxxx Xxxxxx
--------------------------------
Name: The Director Ltd.
Title: Director
CHEMICAL NOMINEES (GUERNSEY)LTD.,
by /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
SAKS INVESTMENTS LIMITED,
by /s/ Xxxxxx Xxxxxx
--------------------------------
Name: The Director Ltd.
Title: Director
SAKS EQUITY LIMITED,
by /s/ Xxxxxx Xxxxxx
--------------------------------
Name: The Director Ltd.
Title: Director
SFA CAPITAL LIMITED,
by /s/ Xxxxxx Xxxxxx
--------------------------------
Name: The Director Ltd.
Title: Director
BALLET LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
--------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
DENARY LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
--------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
GLEAM LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
--------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
HIGHLANDS LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
--------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
NOBLE LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
--------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
OUTRIGGER LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
--------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
QUILL LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
--------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
RADIAL LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
--------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
SHORELINE LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
--------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
ZINNIA LIMITED,
by /s/ H. Xxxxxxx Xxxxxx, III
--------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Title: Authorized Signatory
SCHEDULE A
NUMBER OF SHARES OF
COMPANY COMMON STOCK
NAME OF STOCKHOLDER 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
Chemical 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
