STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of March 1, 1999 (the "Agreement"),
between the undersigned holders (the "Holders") of shares of the common stock,
$.01 par value (the "Company Common Stock"), of Nine West Group Inc., a
Delaware Corporation (the "Company"), and Jones Apparel Group, Inc., a
Pennsylvania corporation ("Parent").
RECITALS
WHEREAS, the Company, Parent and Jill Acquisition Sub Inc., a
Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"),
propose to enter into an Agreement and Plan of Merger dated as of the date
hereof (the "Merger Agreement"; capitalized terms not otherwise defined herein
being used herein as therein defined), pursuant to which the Company would be
merged (the "Merger") with Merger Sub, and each outstanding share of Company
Common Stock would be converted into the right to receive shares of common
stock, par value $.01 per share, of Parent and an amount in cash, in
accordance with the terms and subject to the conditions of the Merger
Agreement;
WHEREAS, as a condition to entering into the Merger Agreement,
Parent has requested each Holder to agree, and each Holder has agreed, to
enter into this Agreement;
WHEREAS, prior to the date hereof, Parent and the Holders had no
agreement, arrangement or understanding (as defined in Section 203 of the
Delaware General Corporation Law (the "DGCL")) for the purpose of acquiring,
holding, voting or disposing of shares of Company Common Stock;
WHEREAS, in consideration of the agreements contained herein, prior
to the date hereof, and prior to the time at and date on which Parent became
an "interested stockholder" for purposes of Section 203 of the DGCL, the board
of directors of the Company has approved this Agreement; and
WHEREAS, the Company and each Holder are parties to that certain
Shareholders Agreement, dated April 29, 1992 (as amended, the "Existing
Shareholders Agreement") providing for, among other things, certain agreements
with respect to the voting of each Holder's shares of Company Common Stock.
NOW, THEREFORE, the parties hereto agree as follows:
AGREEMENT
1. REPRESENTATIONS AND WARRANTIES OF THE HOLDERS. Each Holder
represents and warrants, severally and not jointly, to Parent as follows:
(a) OWNERSHIP OF SECURITIES. Each Holder is the record and
beneficial owner of, and has good and marketable title to, the number of
shares of Company Common Stock (the "Existing Securities") (together with any
shares of Company Common Stock hereafter acquired by any Holder (including
through the exercise of options or similar instruments), the "Subject
Securities") set forth on the signature page to this Agreement. Such Holder
does not own of record or beneficially any shares of capital stock of the
Company on the date hereof other than the Existing Securities. Subject to the
Existing Shareholders Agreement, such Holder has sole voting power and sole
power to issue instructions with respect to the voting of the Existing
Securities and sole power of disposition of the Existing Securities and, on
the record date for, and on the date of the stockholders meeting of the
Company held to vote on adoption of the Merger Agreement, will have sole
voting power and sole power to issue instructions with respect to the voting
of all of such Holder's Subject Securities and sole power of disposition of
such Holder's Subject Securities.
(b) POWER; BINDING AGREEMENT. Each Holder has full power and
authority to enter into and perform all of its obligations under this
Agreement. This Agreement has been duly and validly executed and delivered by
each Holder and constitutes a valid and binding agreement of such Holder,
enforceable against such Holder in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws relating to or affecting creditors generally, by
general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) or by an implied covenant of
good faith and fair dealing.
(c) NO CONFLICTS. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority or any other person or entity is necessary for the execution of this
Agreement by any Holder and the consummation by such Holder of the
transactions contemplated hereby, other than pursuant to the Exchange Act, the
HSR Act or foreign competition or antitrust laws or any filing, permit,
authorization, consent or approval, the failure of which to obtain would not
reasonably be expected to prevent such Holder from performing its obligations
under this Agreement, and neither the execution and delivery of this Agreement
by such Holder nor the consummation by such Holder of the transactions
contemplated hereby nor compliance by such Holder with any of the provisions
hereof will conflict with or result in any breach of any applicable
organizational documents or instruments applicable to such Holder, result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third-party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which such Holder is a party or by
which such Holder's Subject Securities may be bound or violate any order,
writ, injunction, decree, judgment, statute, rule or regulation applicable to
such Holder as of the date hereof, other than such violations, breaches or
defaults that would not reasonably be expected to prevent such Holder from
performing its obligations under this Agreement.
(d) NO LIENS. The Existing Securities are now and, at all
times during the term hereof, the Subject Securities will be held by such
Holder, or by a nominee or custodian for the benefit of such Holder, free and
clear of all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any encumbrances arising hereunder and except for the
Existing Shareholders Agreement.
2. AGREEMENT TO VOTE SHARES. At every meeting of the stockholders
of the Company called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of the Company with respect to any of the following, each Holder
irrevocably agrees that it shall vote (or cause to be voted) all the Subject
Securities that it beneficially owns on the record date of any such vote or
action (a) in favor of the Merger, the adoption of the Merger Agreement and
the approval of the terms thereof (with such modifications as the parties
thereto may make (except for modifications that would adversely affect such
Holder)) and each of the other transactions contemplated by the Merger
Agreement and (b) against any of the following (or any agreement to enter into
or effect any of the following): (i) any Acquisition Proposal or transaction
or occurrence which if publicly proposed and offered to the Company and its
stockholders (or any of them) would be the subject of an Acquisition Proposal
or (ii) any amendment of the Company's certificate of incorporation or by-laws
or other proposal, action or transaction involving the Company or any of its
Subsidiaries, which amendment or other proposal, action or transaction would
reasonably be expected to prevent or materially impede or delay the
consummation of the Merger. Such Holder shall not commit or agree to take any
action inconsistent with the foregoing.
3. IRREVOCABLE PROXY. Each Holder hereby, severally and not
jointly, grants to, and appoints Merger Sub and the President and Treasurer
of Merger Sub and the Secretary of Merger Sub, in their respective capacities
as officers of Merger Sub, and any individual who shall hereafter succeed to
any such office of Merger Sub, and any other designee or Merger Sub, each of
them individually, such Holder's proxy and attorney-in-fact (with full power
of substitution) to vote or act by written consent with respect to such
Holder's Subject Securities in accordance with Section 2 hereof. This proxy
is coupled with an interest and shall be irrevocable, and each Holder will
take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy and hereby revokes any proxy previously
granted by it with respect to the Subject Securities; provided that this proxy
shall be automatically revoked without any further action on the part of the
Holder, Parent or Merger Sub upon the termination of this Agreement pursuant
to Section 14 hereof.
4. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent represents and
warrants to each Holder as follows:
(a) POWER; BINDING AGREEMENT. Parent has full power and
authority to enter into and perform all of its obligations under this
Agreement. This Agreement has been duly and validly executed and delivered by
Parent and constitutes a valid and binding agreement of Parent, enforceable
against Parent in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium and similar
laws relating to or affecting creditors generally, by general equity
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law) or by an implied covenant of good faith and
fair dealing.
(b) NO CONFLICTS. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority or any other person or entity is necessary for the execution of this
Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby, other than pursuant to the Exchange Act, the HSR Act or
foreign competition or antitrust laws or any filing, permit, authorization,
consent or approval, the failure of which to obtain would not reasonably be
expected to prevent Parent from performing its obligations under this
Agreement, and neither the execution and delivery of this Agreement by Parent
nor the consummation by Parent of the transactions contemplated hereby nor
compliance by Parent with any of the provisions hereof will conflict with or
result in any breach of any applicable organizational documents or instruments
applicable to Parent, result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise to any
third-party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to
which Parent is a party or by which Parents properties or assets may be bound
or violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to Parent as of the date hereof, other than such
violations, breaches or defaults that would not reasonably be expected to
prevent Parent from performing its obligations under this Agreement.
5. COVENANTS OF THE HOLDERS. Each Holder hereby agrees and
covenants that:
(a) NO SOLICITATION. Each Holder shall not, and shall not
authorize and shall use his reasonable best efforts not to permit any of his,
her or its affiliates, partners, investment bankers, attorneys, agents or
other advisors or representatives to, directly or indirectly, in his or its
capacity as a stockholder of the Company, solicit, knowingly encourage
(including by way of providing confidential information or data) or have any
discussion or negotiate with any person or entity (other than Parent or any
affiliate of Parent) concerning any proposal by such person or entity with
respect to the Company that constitutes or could reasonably be expected to
lead to an Acquisition Proposal (as defined in the Merger Agreement), except
to the extent such action is taken by such Holder in connection with or
relating to actions permitted to be taken by the Company under Section 5.4 of
the Merger Agreement. Each Holder will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any
parties conducted heretofore by or on its behalf with respect to any of the
foregoing.
(b) RESTRICTION ON TRANSFER, PROXIES AND NONINTERFERENCE.
Each Holder shall not, and shall not authorize or permit any of his, her or
its affiliates, partners, investment bankers, attorneys, agents or other
advisors or representatives to, directly or indirectly: (i) offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of
(including by gift), or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Subject Securities (or any interest therein), unless the
transferee or pledgee of such Subject Securities agrees in writing in a form
reasonably satisfactory to Parent (with a copy furnished to Parent) to be
bound by all of the provisions of this Agreement with respect to such
transferred or pledged Subject Securities, except that each such Holder may do
any of the foregoing pursuant to the terms of the Merger Agreement; (ii)
except as contemplated hereby, grant any proxies or powers of attorney,
deposit any such Subject Securities into a voting trust or enter into a voting
agreement with respect to any of the Subject Securities; (iii) take any action
that would have the effect of preventing or disabling such Holder from
performing his obligations under this Agreement; or (iv) commit or agree to
take any of the foregoing actions.
(c) Each Holder hereby waives, and agrees not to exercise or
assert, any appraisal rights under Section 262 of the DGCL in connection with
the Merger.
(d) Each Holder will, from time to time, execute and deliver,
or cause to be executed and delivered, such additional or further consents,
documents and other instruments as Parent may reasonably request for the
purpose of effectuating the matters covered by this Agreement.
6. FIDUCIARY DUTIES. Notwithstanding anything in this Agreement to
the contrary, the covenants and agreements set forth herein shall not prevent
any Holder from taking any action, subject to applicable provisions of the
Merger Agreement, while acting as a director of the Company. Parent
acknowledges and agrees that each Holder who has signed this Agreement does so
solely in his capacity as a stockholder of the Company, and not in his
capacity as a director, officer or employee of the Company, and that such
action on behalf of such Holder does not limit or restrict his ability to
vote, or otherwise act, in his capacity as a director, officer or employee of
the Company. Notwithstanding the foregoing, except as contemplated by Section
14 hereof, this Agreement shall be and shall remain binding upon such Holder
irrespective of any action taken by any such Holder in his capacity as a
director, officer or employee of the Company.
7. ASSIGNMENT; BENEFITS. This Agreement may not be assigned by any
party hereto without the prior written consent of the other party. This
Agreement shall be binding upon, and shall inure to the benefit of, each of
the Holders, Parent and their respective successors and permitted assigns.
8. NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly
given or made if and when delivered personally or by overnight courier or sent
by electronic transmission, with confirmation received, to the telecopy
numbers specified below:
If to the Holders:
Vincent Camuto
c/o Nine West Group Inc.
1129 Westchester Avenue
White Plains, NY 10604
Telecopier No.: (914) 640-4280
Telephone No.: (914) 640-2400
Jerome Fisher
c/o Nine West Group Inc.
1129 Westchester Avenue
White Plains, NY 10604
Telecopier No.: (914) 640-7898
Telephone No.: (914) 640-2400
With copies to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Telecopier No.: (212) 455-2502
Telephone No.: (212) 455-2000
Attention: Robert E. Spatt, Esq.
If to Parent:
Jones Apparel Group, Inc.
1411 Broadway
New York, NY 10018
Telecopier No.: (212) 642-3936
Telephone No.: (212) 921-0220
Attention: Ira M. Dansky, Esq.;
and
Jones Apparel Group, Inc.
250 Rittenhouse Circle
Keystone Park
Bristol, PA 19007
Telecopier No.: (215) 785-1228
Telephone No.: (215) 785-4000
Attention: Wesley R. Card
With copies to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Telecopier No.: (212) 474-3700
Telephone No.: (212) 474-1000
Attention: Allen Finkelson, Esq.
Scott A. Barshay, Esq.
or to such other address or telecopy number as any party may have furnished to
the other parties in writing in accordance herewith.
9. NOTICE OF LITIGATION. Each Holder shall promptly notify Parent
of any pending or, to its knowledge, threatened action or proceeding
challenging the validity or enforceability of this Agreement.
10. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable harm would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its 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 hereof in any court of
the United States or any state thereof having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
11. AMENDMENT. This Agreement may not be amended or modified,
except by an instrument in writing signed by or on behalf of each of the
parties hereto. This Agreement may not be waived by any party hereto, except
by an instrument in writing signed by or on behalf of the party granting such
waiver.
12. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to the principles of conflicts of law.
13. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
14. TERMINATION. This Agreement shall terminate upon the earliest
of (i) the consummation of the Merger, (ii) the withdrawal or modification in
any manner adverse to Parent by the board of directors of the Company of its
approval or recommendation of the Merger Agreement pursuant to Section 5.4 of
the Merger Agreement and (iii) the termination of the Merger Agreement. 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 or of any transactions contemplated hereby or by the Merger
Agreement on the part of any party hereto or any of its directors, officers,
partners, stockholders, employees, agents, advisors, representatives or
affiliates; PROVIDED, HOWEVER, that nothing herein shall relieve any party
from any liability for such party's wilful breach of any of its material
agreements contained in this Agreement; and PROVIDED FURTHER that nothing
herein shall limit, restrict, impair, amend or otherwise modify the rights,
remedies, obligations or liabilities of any person under any other contract or
agreement, including the Merger Agreement.
15. SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability and shall
not render invalid or unenforceable the remaining terms and provisions of this
Agreement or affect the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
JONES APPAREL GROUP, INC.
By: /s/ Sidney Kimmel
-------------------------
Name: Sidney Kimmel
Title: Chairman
/s/ Vincent Camuto
-------------------------
Vincent Camuto
Shares of Company Common Stock: 4,344,208
/s/ Jerome Fisher
-------------------------
Jerome Fisher
Shares of Company Common Stock: 2,360,618