Exhibit 4.1
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of February 20,
2003, between J. Crew Group, Inc. (the "Company"), TPG Partners II, L.P. ("TPG")
and Jeffrey A. Pfeifle (the "Stockholder").
WHEREAS, the Stockholder is an employee of the Company and in such
capacity is on the date hereof being granted restricted shares ("Restricted
Shares") of common stock of the Company, $.01 par value per share ("Common
Stock"), and is being granted certain options (the "Options") to purchase shares
of Common Stock, in each case pursuant to the Company's 2003 Equity Incentive
Plan (the "2003 Plan"), and may be granted additional shares of Common Stock or
rights to purchase Common Stock in the future in connection with his performance
of services;
WHEREAS, as a condition to the issuance of the Options and the
Restricted Shares, the Stockholder is required under the 2003 Plan to execute
this Agreement; and
WHEREAS, the Stockholder and the Company desire to enter this Agreement
and to have this Agreement apply to the shares to be acquired pursuant to the
2003 Plan and to any shares of Common Stock acquired after the date hereof by
the Stockholder from whatever source, subject to any future agreement between
the Company and the Stockholder to the contrary (in the aggregate, the
"Shares").
NOW THEREFORE, in consideration of the premises hereinafter set forth,
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows.
1. Investment. The Stockholder represents that the Shares are being
acquired for investment and not with a view toward the distribution thereof.
2. Issuance of Shares. The Stockholder acknowledges and agrees that the
certificate for the Shares shall bear the following legends (except that the
second paragraph of this legend shall not be required after the Shares have been
registered and except that the first paragraph of this legend shall not be
required after the termination of this Agreement):
The shares represented by this certificate are subject to the terms and
conditions of a Stockholders' Agreement dated as of February 20, 2003
and may not be sold, transferred, hypothecated, assigned or encumbered,
except as may be permitted by the aforesaid Agreement. A copy of the
Stockholders' Agreement may be obtained from the Secretary of the
Company.
The shares represented by this certificate have not been registered
under the Securities Act of 1933. The shares have been acquired for
investment and may not be sold, transferred, pledged or hypothecated in
the absence of an effective registration statement for the shares under
the Securities Act of 1933 or an opinion of counsel for the Company
that registration is not required under said Act.
Upon the termination of this Agreement, or upon registration of the
Shares under the Securities Act of 1933 (the "Securities Act"), the Stockholder
shall have the right to exchange any Shares containing the above legends (i) in
the case of the registration of the Shares, for Shares legended only with the
first paragraph described above and (ii) in the case of the termination of this
Agreement, for Shares legended only with the second paragraph described above.
3. Transfer of Shares; Call Rights.
(a) The Stockholder agrees that he will not cause or permit the Shares
or his interest in the Shares to be sold, transferred, hypothecated, assigned or
encumbered except as expressly permitted by this Section 3; provided, however,
that the Shares or any such interest may be transferred (i) on the Stockholder's
death by bequest or inheritance to the Stockholder's executors, administrators,
testamentary trustees, legatees or beneficiaries, (ii) to a trust or
custodianship the beneficiaries of which may include only the Stockholder, the
Stockholder's spouse, or the Stockholder's lineal descendants (by blood or
adoption) and (iii) in accordance with Section 4 of this Agreement, subject in
any such case to the agreement by each transferee (other than the Company) in
writing to be bound by the terms of this Agreement and provided in any such case
that no such transfer that would cause the Company to be required to register
the Common Stock under Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), shall be permitted.
(b) The Company (or its designated assignee) shall have the right
commencing on the later of (x) the termination of the Stockholder's employment
with the Company for any reason and (y) one year following the date of the
acquisition by the Stockholder of any Shares, to purchase from the Stockholder,
and upon the exercise of such right the Stockholder shall sell to the Company
(or its designated assignee), all or any portion of the Shares held by the
Stockholder as of the date as of which such right, is exercised at a per Share
price equal to the Fair Market Value (as defined in the 2003 Plan) of a share of
Common Stock determined as of the date as of which such right is exercised. The
Company (or its designated assignee) shall exercise such right by delivering to
the Stockholder a written notice specifying its intent to purchase Shares held
by the Stockholder, the date as of which such right is to be exercised and the
number of Shares to be purchased. Such purchase and sale shall occur on such
date as the Company (or its designated assignee) shall specify which date shall
not be later than ninety (90) days after the fiscal quarter-end immediately
following the date as of which the Company's right is exercised.
4. Certain Rights.
(a) Drag Along Rights. If TPG desires to sell all or substantially all
of its shares of Common Stock to a good faith independent purchaser (a
"Purchaser") (other than any other investment partnership, limited liability
company or other entity established for investment purposes and controlled by
the principals of TPG or any of its affiliates and other than any employees of
TPG or any of its affiliates, hereinafter referred to as a "Permitted
Transferee") and said Purchaser desires to acquire all or substantially all of
the issued and outstanding shares of Common Stock (or all or substantially all
of the assets of the Company) upon such terms and conditions as agreed to with
TPG, the Stockholder agrees to sell all of his Shares to said
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Purchaser (or to vote all of his Shares in favor of any merger or other
transaction which would effect a sale of such shares of Common Stock or assets
of the Company) at the same price per share of Common Stock and pursuant to the
same terms and conditions with respect to payment for the shares of Common Stock
as agreed to by TPG. In such case, TPG shall give written notice of such sale to
the Stockholder at least 30 days prior to the consummation of such sale, setting
forth (i) the consideration to be received by the holders of shares of Common
Stock, (ii) the identity of the Purchaser, (iii) any other material items and
conditions of the proposed transfer and (iv) the date of the proposed transfer.
(b) Tag Along Rights. (i) Subject to paragraph (iv) of this Section
4(b), if TPG or its affiliates propose to transfer any of its shares of Common
Stock to a Purchaser (other than a Permitted Transferee), then TPG or such
Permitted Transferee (hereinafter referred to as a "Selling Stockholder") shall
give written notice of such proposed transfer to the Stockholder (the "Selling
Stockholder's Notice") at least 30 days prior to the consummation of such
proposed transfer, and shall provide notice to all other stockholders of the
Company to whom TPG has granted similar "tag-along" rights (such stockholders
together with the Stockholder, referred to herein as the "Other Stockholders")
setting forth (A) the number of shares of Common Stock offered, (B) the
consideration to be received by such Selling Stockholder, (C) the identity of
the Purchaser, (D) any other material items and conditions of the proposed
transfer and (E) the date of the proposed transfer.
(ii) Upon delivery of the Selling Stockholder's Notice, the Stockholder
may elect to sell up to the sum of (A) the Pro Rata Portion (as hereinafter
defined) and (B) the Excess Pro Rata Portion (as hereinafter defined) of his
Shares, at the same price per share of Common Stock and pursuant to the same
terms and conditions with respect to payment for the shares of Common Stock as
agreed to by the Selling Stockholder, by sending written notice to the Selling
Stockholder within 15 days of the date of the Selling Stockholder's Notice,
indicating his election to sell up to the sum of the Pro Rata Portion plus the
Excess Pro Rata Portion of his Shares in the same transaction. Following such 15
day period, the Selling Stockholder and each Other Stockholder shall be
permitted to sell to the Purchaser on the terms and conditions set forth in the
Selling Stockholder's Notice the sum of (X) the Pro Rata Portion and (Y) the
Excess Pro Rata Portion of its Shares.
(iii) For purposes of Section 4(b) hereof, "Pro Rata Portion" shall
mean, with respect to shares of Common Stock held by the Stockholder or Selling
Stockholder, as the case may be, a number equal to the product of (x) the total
number of such shares then owned by the Stockholder or the Selling Stockholder,
as the case may be, and (y) a fraction, the numerator of which shall be the
total number of such shares proposed to be sold to the Purchaser as set forth in
the Selling Stockholder's Notice and the denominator of which shall be the total
number of such shares then outstanding (including such shares proposed to be
sold by the Selling Stockholder); provided, however, that any fraction of a
share resulting from such calculation shall be disregarded for purposes of
determining the Pro Rata Portion. For purposes of Section 4(b), "Excess Pro Rata
Portion" shall mean, with respect to shares of Common Stock held by the
Stockholder or the Selling Stockholder, as the case may be, a number equal to
the product of (x) the number of Non-Elected Shares (as defined below) and (y) a
fraction, the numerator of which shall be such Stockholder's Pro Rata Portion
with respect to such shares, and the denominator of which shall be the sum of
(1) the aggregate Pro Rata Portions with respect to the shares of
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Common Stock of all of the Other Stockholders that have elected to exercise
their rights to sell their Pro Rata Portion of shares of Common Stock, and (2)
the Selling Stockholder's Pro Rata Portion of shares of Common Stock (the
aggregate amount of such denominator is hereinafter referred to as the "Elected
Shares"). For purposes of this Agreement, "Non-Elected Shares" shall mean the
excess, if any, of (x) the total number of shares of Common Stock proposed to be
sold to a Purchaser as set forth in a Selling Stockholder's Notice, over (y) the
amount of Elected Shares.
(iv) Notwithstanding anything to the contrary contained herein, the
provisions of this Section 4(b) shall not apply to any sale or transfer by TPG
of shares of Common Stock unless and until TPG, after giving effect to the
proposed sale or transfer, shall have sold or transferred in the aggregate
(other than to Permitted Transferees) shares of Common Stock, representing 7.5%
of shares of Common Stock owned by TPG on the date hereof.
5. Termination. This Agreement shall terminate immediately following
the existence of a Public Market for the Common Stock except that (i) the
requirements contained in Section 2 hereof shall survive the termination of this
Agreement and (ii) the provisions contained in Section 3 hereof shall continue
with respect to each Share during such period of time, if any, as the
Stockholder is precluded from selling such Shares pursuant to Rule 144 of the
Securities Act. For this purpose, a "Public Market" for the Common Stock shall
be deemed to exist if the Common Stock is registered under Section 12(b) or
12(g) of the Exchange Act and trading regularly occurs in such Common Stock in,
on or through the facilities of securities exchanges and/or inter-dealer
quotation systems in the United States (within the meaning of Rule 902(j) of the
Securities Act) or any designated offshore securities market (within the meaning
of Rule 902(b) of the Securities Act).
6. Distributions With Respect To Shares. As used herein, the term
"Shares" includes securities of any kind whatsoever distributed with respect to
the Common Stock acquired by the Stockholder pursuant to the 2003 Plan or any
such securities resulting from a stock split or consolidation involving such
Common Stock.
7. Amendment; Assignment. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by authorized representatives of the parties or, in
the case of a waiver, by an authorized representative of the party waiving
compliance. No such written instrument shall be effective unless it expressly
recites that it is intended to amend, supersede, cancel, renew or extend this
Agreement or to waive compliance with one or more of the terms hereof, as the
case may be. Except for the Stockholder's right to assign his or her rights
under Section 3(a) or the Company's right to assign its rights under Section
3(b), no party to this Agreement may assign any of its rights or obligations
under this Agreement without the prior written consent of the other parties
hereto.
8. Notices. All notices and other communications hereunder shall be in
writing, shall be deemed to have been given if delivered in person or by
certified mail, return receipt requested, and shall be deemed to have been given
when personally delivered or three (3) days after mailing to the following
address:
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If to the Stockholder:
To the Stockholder's most recent address on file with the Company.
If to the Company:
J. Crew Group, Inc.
770 Broadway
New York, NY 10003
Attention: General Counsel
If to TPG:
TPG Partners II, L.P.
c/o TPG Advisors II, Inc.
301 Commerce Street, Suite 3300
Fort Worth, Texas 76102
Attention: Richard A. Ekleberry
or to such other address as any party may have furnished to the others
in writing in accordance herewith, except that notices of change of address
shall only be effective upon receipt.
9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of NEW YORK, without reference to its
principles of conflicts of law.
11. Binding Effect. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by the heirs, personal representatives,
successors and permitted assigns of the parties hereto. Nothing expressed or
referred to in this Agreement is intended or shall be construed to give any
person other than the parties to this Agreement, or their respective heirs,
personal representatives, successors or assigns, any legal or equitable rights,
remedy or claim under or in respect of this Agreement or any provision contained
herein.
12. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof.
13. Severability. If any term, provision, covenant or restriction of
this Agreement, is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
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14. Miscellaneous. 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. A facsimile of a signature shall be deemed an
original signature for purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
J. CREW GROUP, INC.
/s/ Scott M. Rosen
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Name: Scott M. Rosen
Title: Executive Vice-President
and Chief Financial Officer
TPG PARTNERS II, L.P.
By: TPG GenPar II, L.P
By: TPG Advisors II, Inc.
/s/ Richard A. Ekleberry
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Name: Richard A. Ekleberry
Title: Vice-President
/s/ Jeffrey A. Pfeifle
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Jeffrey A. Pfeifle
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