Exhibit 6
===================================================================
GOVERNANCE AGREEMENT
by and between
BRYLANE INC.
and
PINAULT PRINTEMPS-REDOUTE, S.A.
dated as of
April 3, 1998
===================================================================
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
Section 1.1 Affiliate..................................... 1
Section 1.2 Agreement..................................... 1
Section 1.3 Beneficially Own.............................. 1
Section 1.4 Board......................................... 1
Section 1.5 Common Stock.................................. 2
Section 1.6 Company....................................... 2
Section 1.7 Covered Transaction........................... 2
Section 1.8 Director...................................... 2
Section 1.9 Early Termination Event....................... 2
Section 1.10 Group......................................... 2
Section 1.11 Independent Director.......................... 2
Section 1.12 Investor...................................... 2
Section 1.13 Investor Nominees............................. 2
Section 1.14 Key Committees................................ 2
Section 1.15 Material Adverse Effect....................... 2
Section 1.15 1933 Act...................................... 2
Section 1.16 1934 Act...................................... 2
Section 1.17 person........................................ 2
Section 1.19 Permitted Percentage.......................... 2
Section 1.20 Standstill Period............................. 3
Section 1.21 Stock Purchase Agreements..................... 3
Section 1.22 13D Group..................................... 3
Section 1.23 Voting Securities............................. 3
ARTICLE 2
Standstill Provisions
Section 2.1 Standstill Period............................. 3
Section 2.2 Restrictions During Standstill Period......... 4
Section 2.3 Waivers of Restrictions....................... 5
ARTICLE 3
Other Covenants
Section 3.1 Maintenance of Ownership...................... 5
Section 3.2 Actions Requiring Approval.................... 5
Section 3.3 Indemnification Agreements and
Insurance..................................... 6
ARTICLE 4
Board of Directors
Section 4.1 Investor Nominees............................. 6
Section 4.2 Committee Representation...................... 7
ARTICLE 5
Representations & Warranties
Section 5.1 Company Representations and Warranties........ 8
Section 5.2 Investor Representations and Warranties....... 8
ARTICLE 6
Miscellaneous
Section 6.1 Counterparts.................................. 9
Section 6.2 Governing Law................................. 9
Section 6.3 Entire Agreement.............................. 9
Section 6.4 Expenses...................................... 10
Section 6.5 Notices....................................... 10
Section 6.6 Successors and Assigns........................ 10
Section 6.7 Headings...................................... 11
Section 6.8 Amendments and Waivers........................ 11
Section 6.9 Interpretation; Absence of Presumption........ 11
Section 6.10 Severability.................................. 11
Section 6.11 Further Assurances............................ 11
Section 6.12 Specific Performance.......................... 11
Section 6.13 Fiduciary Dates............................... 12
Section 6.14 Confidentiality; Other Arrangements........... 12
-ii-
THIS GOVERNANCE AGREEMENT (the "Agreement"), dated as of April 3,
1998, is made by and between Brylane Inc., a Delaware corporation (the
"Company"), and Pinault Printemps-Redoute, S.A., a societe anonyme organized
under the laws of France ("Investor").
RECITALS:
WHEREAS, the Investor and The Limited, Inc. ("The Limited") and
certain affiliates of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. (collectively, "FS," and together
with The Limited, the "Selling Stockholders") have each entered into individual
Stock Purchase Agreements, dated as of February 19, 1998 (collectively, the
"Stock Purchase Agreements"), pursuant to which the Selling Stockholders are
selling, conveying, assigning and transferring, and Investor is purchasing,
certain shares of the common stock, par value $.01 per share, of the Company
(the "Common Stock") on the date hereof; and
WHEREAS, it is a condition to the transactions contemplated by the
Stock Purchase Agreements and the parties believe it to be in their best
interests that they enter into this Agreement to provide for certain rights and
restrictions with respect to the investment by Investor in the Company and the
corporate governance of the Company; and
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE 1
Definitions
As used in this Agreement, the following terms shall have the following
respective meanings:
Section 1.1 "Affiliate" shall have the meaning ascribed thereto in
Rule 12b-2 promulgated under the 1934 Act, and as in effect on the date hereof.
Section 1.2 "Agreement" shall have the meaning set forth in the
first paragraph hereof.
Section 1.3 "Beneficially Own" shall mean, with respect to any
security, having direct or indirect (including through any Subsidiary or
Affiliate) "beneficial ownership" of such security, as determined pursuant to
Rule 13d-3 under the 1934 Act, including pursuant to any agreement, arrangement
or understanding, whether or not in writing.
Section 1.4 "Board" shall mean the board of directors of the
Company.
Section 1.5 "Common Stock" shall have the meaning set forth in the
second paragraph hereof.
Section 1.6 "Company" shall have the meaning set forth in the first
paragraph hereof.
Section 1.7 "Covered Transaction" shall have the meaning set forth
in Section 2.1(iv).
Section 1.8 "Director" shall mean a member of the Board.
Section 1.9 "Early Termination Event" shall have the meaning set
forth in Section 2.1.
Section 1.10 "Group" shall mean a "group" as such term is used in
Section 13(d)(3) of the 1934 Act.
Section 1.11 "Independent Director" shall mean ▇▇. ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as well as any individual who is not a member of
the Company's management and is not affiliated with Investor, The Limited, or FS
or any of their respective affiliates (including any individual who in the past
three years has been an officer, employee, consultant or advisor of or to any of
the foregoing).
Section 1.12 "Investor" shall have the meaning set forth in the
first paragraph hereof.
Section 1.13 "Investor Nominees" shall have the meaning set forth in
Section 4.1.
Section 1.14 "Key Committees" shall have the meaning set forth in
Section 4.2.
Section 1.15 "Material Adverse Effect" shall mean a material adverse
effect on the results of operations, condition, financial or otherwise, or on
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
Section 1.16 "1933 Act" shall mean the Securities Act of 1933, as
amended.
Section 1.17 "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
Section 1.18 "person" shall mean any individual, corporation,
partnership, limited liability company, joint venture, trust, unincorporated
organization, other form of business or legal entity or government authority.
Section 1.19 "Permitted Percentage" shall have the meaning set forth
in Section 2.2.
-2-
Section 1.20 "Standstill Period" shall have the meaning set forth in
Section 2.1.
Section 1.21 "Stock Purchase Agreements" shall have the meaning set
forth in the second paragraph hereof.
Section 1.22 "13D Group" shall mean any group of persons acquiring,
holding, voting or disposing of Voting Securities which would be required under
Section 13(d) of the 1934 Act and the rules and regulations thereunder (as in
effect, and based on legal interpretations thereof existing, on the date hereof)
to file a statement on Schedule 13D with the Securities and Exchange Commission
as a "person" within the meaning of Section 13(d)(3) of the 1934 Act if such
group beneficially owned Voting Securities representing more than 5% of any
class of Voting Securities then outstanding.
Section 1.23 "Voting Securities" shall mean at any time shares of
any class of capital stock of the Company which are then entitled to vote
generally in the election of Directors.
ARTICLE 2
Standstill Provisions
Section 2.1 Standstill Period. The "Standstill Period" shall be the period
commencing on the date of Closing and ending on the earlier of (x) the date that
is 36 months from the date thereof, or (y) the earliest of:
(i) the occurrence of any event of default on the part of the
Company or any subsidiary under any debt agreements, instruments, or
arrangements which event of default would reasonably be expected to
result in a Material Adverse Effect and, in the case of a
non-monetary event of default, which event of default cannot be, or
is not, cured by the Company within the applicable cure period under
such debt agreement, instrument or arrangement;
(ii) the acquisition by any person or Group other than Investor
or any Affiliate thereof of, or the announcement or commencement of a
tender or exchange offer by any person or Group other than Investor
or any Affiliate thereof to acquire, Beneficial Ownership of more
than 20% of the outstanding shares of Voting Securities;
(iii) the commencement by any person or Group (not affiliated
with Investor) of an "election contest" (as defined in Section 2.2)
or the seeking through other means of the removal of any Directors
from office; and
(iv) the written submission by any person or Group other than
Investor or any Affiliate thereof of a proposal to the Company
(including to the Board or any agent, representative or Affiliate of
the Company) with respect to, or
-3-
otherwise expressing an interest in pursuing, a merger,
consolidation or other business combination of the Company, sale of
all or substantially all of the assets of the Company or significant
recapitalization or significant reorganization of the Company (any of
the foregoing, a "Covered Transaction"); provided, however, that the
Standstill Period shall not terminate pursuant to this Section
2.1(iv) if, as soon as practicable after receipt of any such
proposal, a majority of the Independent Directors determines that
such proposal is not in the best interest of the Company and its
shareholders and for so long as a majority of the Independent
Directors continues to reject such proposal as a result of such
determination.
Any event set forth in subsection (i), (ii), (iii) or (iv) of this
Section 2.1 shall be an "Early Termination Event."
Section 2.2 Restrictions During Standstill Period. During the
Standstill Period, Investor will not, and will use its reasonable best efforts
to cause each of its Affiliates not to, directly or indirectly:
(i) act in concert with any other person or Group by becoming a
member of a 13D Group, other than any 13D Group comprised exclusively
of Investor and one or more of its Affiliates;
(ii) purchase or otherwise acquire shares of capital stock
(including Common Stock or other Voting Securities) (or options,
rights or warrants or other commitments to purchase and securities
convertible into (or exchangeable or redeemable for) shares of such
capital stock or other Voting Securities) as a result of which, after
giving effect to such purchase or acquisition, Investor and its
Affiliates will Beneficially Own more than the percentage of the
outstanding shares of Voting Securities (the "Permitted Percentage")
represented by the sum of (i) 6,963,056 shares of Common Stock sold
pursuant to the Stock Purchase Agreements with The Limited and FS,
(ii) the 595,195 shares of Common Stock subject to tag-along rights
pursuant to that certain Stockholders' Agreement dated as of February
26, 1997 among certain stockholders of the Company, (iii) the 374,365
shares of Common Stock beneficially owned by TJX and related parties
(including those underlying the convertible note held by TJX), (iv)
the 163,900 shares of Common Stock issued pursuant to certain
subscription agreements, and (v) the shares of Common Stock
underlying certain management options and related securities (i.e.,
617,084 performance shares and 68,500 redeemable preferred shares)
(giving effect to the issuance and exercise of such shares and
options) divided by the 18,470,469 then outstanding shares of Common
Stock (which gives effect to the shares of Common Stock issued upon
exercise or conversion of the foregoing securities);
(iii) solicit, encourage or publicly propose
to effect any Covered Transaction;
-4-
(iv) solicit, initiate, encourage or participate in any
"solicitation" of "proxies" or become a "participant" in any
"election contest" (as such terms are defined or used in Regulation
14A under the 1934 Act, disregarding clause (iv) of Rule 14a-1(l)(2)
and including an exempt solicitation pursuant to Rule 14a-2(b)(1));
call, or in any way encourage or participate in a call for, any
special meeting of shareholders of the Company (or take any action
with respect to acting by written consent of the shareholders of the
Company); request, or take any action to obtain or retain any list of
holders of any securities of the Company; or initiate or propose any
shareholder proposal or participate in or encourage the making of, or
solicit shareholders of the Company for the approval of, one or more
shareholder proposals; provided, however, that Investor shall not be
prohibited from communicating with a securityholder who is engaged in
any "solicitation" of "proxies" or who is a "participant" in any
"election contest"; or
(v) assist, advise, encourage or act in concert with any person
with respect to, or seek to do, any of the foregoing.
Section 2.3 Waivers of Restrictions. Notwithstanding anything to the
contrary contained herein, the Company may waive any of the foregoing
restrictions during the Standstill Period upon the approval of a majority of
Independent Directors.
ARTICLE 3
Other Covenants
Section 3.1 Maintenance of Ownership. (a) From and after the date hereof,
Investor shall have the ability to maintain its ownership of up to the Permitted
Percentage of the outstanding shares of Voting Securities through (i) open
market purchases or (ii) purchases of Common Stock directly from the Company;
provided, that any purchases directly from the Company pursuant to clause (ii)
of this Section 3.1(a) shall be subject to the prior approval of a majority of
the Independent Directors.
(b) If, at any time following the termination of the Standstill
Period, Investor acquires more than 65% of the outstanding shares of Voting
Securities, Investor shall (i) commence a tender offer for all of the
outstanding shares of Common Stock held by stockholders other than Investor and
its Affiliates at a price per share equal to at least the greater of (a) the
average closing price of the Common Stock over the prior 365-day period or (b)
the then-current market price or (ii) shall engage in such other transaction
approved by a majority of the Independent Directors.
Section 3.2 Actions Requiring Prior Approval. (a) As long as at
least two-ninths or an equivalent proportion of the Directors are Investor
Nominees, (i) any transaction with Investor or its Affiliates must be on
arm's-length terms and approved by a majority of the Independent Directors; (ii)
any amendment, repeal or other modification of this Agreement or any other
agreement or instrument of the Company, including the Company's charter or
bylaws,
-5-
which would have the effect of altering the terms of this Agreement in any
manner adverse to the stockholders of the Company (other than Investor) must be
approved by a majority of the Independent Directors; (iii) dispositions, of any
assets of the Company or any business combination, spin-off or other transaction
pursuant to which Investor would receive consideration different from that
received by other holders of Common Stock must be approved by a majority of the
Independent Directors; and (iv) any corporate opportunity (merger or
acquisition) relating to the United States mail order business which Investor or
its Affiliates receives shall first be presented to and considered by the
Company. If, within 20 days of being presented with such opportunity , the
Company chooses not to pursue such opportunity or the Company chooses to pursue
such opportunity and fails to consummate a transaction with respect to such
opportunity within 45 days of being presented with the opportunity, Investor
and/or its Affiliates may pursue such opportunity. In addition, if any Investor
business that is primarily mail order desires to enter the United States mail
order business, then the Company shall be offered a right of first refusal with
respect to such business in the United States. If the Company does not pursue
any corporate opportunity (or Investor business) presented to it, Investor may
then pursue such opportunity. Investor will not interfere with any merger or
acquisition opportunities that the Company receives on its own (other than
through participating in any decision made by the Board). If, within 20 days of
being presented with such opportunity , the Company chooses not to pursue such
opportunity or the Company chooses to pursue such opportunity and fails to
consummate a transaction with respect to such opportunity within 45 days of
being presented with the opportunity, Investor and/or its Affiliates may pursue
such opportunity.
(b) From the date hereof until the first anniversary
hereof, none of Mr. Canzone, ▇▇. ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇. ▇▇▇,
▇▇. ▇▇▇▇▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇▇ may be terminated (other than for
"cause" as defined in their respective employment agreements as
in effect on the date hereof) without the approval of two-thirds
of the Directors then in office.
Section 3.3 Indemnification Agreements and
Insurance. (a) Investor shall use its reasonable best efforts to
cause the Company to adopt indemnification agreements with any
Independent Directors.
(b) Investor shall use its reasonable best efforts to cause the
Company to maintain the director and officer insurance in place on the date
hereof.
ARTICLE 4
Board of Directors
Section 4.1 Investor Nominees. The Company shall use its best efforts to have
the Board include up to five nominees named by Investor in the slate of nominees
presented by the Board for election at each meeting of stockholders of the
Company at which Directors are to be elected (such nominees who become
Directors, "Investor Directors"); provided, however, if Investor's share
ownership falls below the percentages indicated below (without Investor buying
-6-
back up to the applicable percentage within 30 days), Investor agrees that the
number specified of Investor Nominees will resign, and Independent Directors
will be appointed in their places:
Number
Ownership of Directors
Percentage to Resign (Total)
---------- -----------------
40% 1
30% 2
20% 3
Investor and the Company shall each use their best efforts to assure that at all
times at least three members of the Board will be Independent Directors and that
the Company's Chief Executive Officer will also be a Director. Investor shall
vote all of its shares in favor of the election of its nominees, Independent
Directors and the Chief Executive Officer.
Section 4.2 Committee Representation. During such time as Investor
is entitled pursuant to Section 4.1 to have at least two Investor Nominees
included in the slate of nominees, Investor and the Company shall use their best
efforts to assure that each committee of the Board shall include two Independent
Directors; provided that the following committees (the "Key Committees") shall
have the composition indicated:
Audit Committee: two Independent Directors;
Compensation Committee: two Investor
Nominees, two Independent Directors (Chairman of
Compensation Committee to be an Investor Nominee); and
Strategic Planning Committee: two Investor
Nominees; one Independent Director, the Company's Chief
Executive Officer;
Investor and the Company shall use their best efforts to assure that (i) any
members of any Key Committee who are Investor Nominees shall, in the event of
any vacancy in such membership, be replaced by a Director who is an Investor
Nominee elected by a majority of the Directors who are Investor Nominees; (ii)
any members of any Key Committee who are Independent Directors shall, in the
event of any vacancy in such membership, be replaced by an Independent Director
approved by a majority of the Independent Directors on the Board; and (iii) the
composition of any other committees of the Board (other than any committees of
Independent Directors formed to act with respect to any transactions involving
Investor (and/or its Affiliates) and the Company and/or its stockholders) shall
be appropriately reflective of the composition of the Board.
-7-
ARTICLE 5
Representations and Warranties
Section 5.1 Company Representations and Warranties. The
Company represents and warrants to Investor as follows:
(a) Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(b) Authority. The Company has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated on its part hereby. The execution, delivery and performance by the
Company of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the
Company. No other action on the part of the Company is necessary to authorize
the execution and delivery of this Agreement by the Company or the performance
by the Company of its obligations hereunder. This Agreement has been duly
executed and delivered by the Company and constitutes a legal, valid and binding
agreement of the Company, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting creditors' rights generally and subject to general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) No Violation. The execution and delivery of this Agreement by
the Company, the performance by the Company of its obligations hereunder and the
consummation by the Company of the transactions contemplated hereby, will not
(a) violate any provision of law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award applicable to the Company, (b)
require the consent, waiver, approval, license or authorization of or any filing
by the Company with any governmental authority (other than any filings required
under the ▇▇▇▇ ▇▇▇) or (c) violate, result (with or without notice or the
passage of time, or both) in a breach of or give rise to the right to
accelerate, terminate or cancel any obligation under or constitute (with or
without notice or the passage of time, or both) a default under, any of the
terms or provisions of any charter document or bylaw, agreement, note,
indenture, mortgage, contract, order, judgment, ordinance, regulation or decree
to which the Company is subject or by which the Company is bound and which would
have an adverse effect on the ability of the Company to perform its obligations
under this Agreement.
Section 5.2 Investor Representations and Warranties. Investor
represents and warrants to the Company as follows:
(a) Organization. Investor is a societe anonyme duly organized,
validly existing and in good standing under the laws of France.
(b) Authority. Investor has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated on its part hereby. The execution, delivery and performance by
Investor of this Agreement and the consummation of the
-8-
transactions contemplated hereby have been duly authorized by all necessary
action on the part of Investor. No other action on the part of Investor is
necessary to authorize the execution and delivery of this Agreement by Investor
or the performance by Investor of its obligations hereunder. This Agreement has
been duly executed and delivered by Investor and constitutes a legal, valid and
binding agreement of Investor, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium, reorganization
or similar laws affecting creditors' rights generally and subject to general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) No Violation. The execution and delivery of this Agreement by
Investor, the performance by Investor of its obligations hereunder and the
consummation by Investor of the transactions contemplated hereby will not (a)
violate any provision of law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award applicable to Investor, (b) require
the consent, waiver, approval, license or authorization of or any filing by
Investor with any governmental authority (other than any filings required under
the ▇▇▇▇ ▇▇▇) or (c) violate, result (with or without notice or the passage of
time, or both) in a breach of or give rise to the right to accelerate, terminate
or cancel any obligation under or constitute (with or without notice or the
passage of time, or both) a default under, any of the terms or provisions of any
charter document or bylaw, agreement, note, indenture, mortgage, contract,
order, judgment, ordinance, regulation or decree to which Investor is subject or
by which Investor is bound and which would have an adverse effect on the ability
of Investor to perform its obligations under this Agreement.
ARTICLE 6
Miscellaneous
Section 6.1 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party. Copies of executed
counterparts transmitted by telecopy, telefax or other electronic transmission
service shall be considered original executed counterparts for purposes of this
Section, provided receipt of copies of such counterparts is confirmed.
Section 6.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE
TO THE CHOICE OF LAW PRINCIPLES THEREOF.
Section 6.3 Entire Agreement. This Agreement hereto contains the
entire agreement between the parties with respect to the subject matter hereof
and there are no agreements, understandings, representations or warranties
between the parties other than those set forth or referred to herein. This
Agreement is not intended to confer upon any person not a party hereto (and
their successors and assigns) any rights or remedies hereunder.
-9-
Section 6.4 Expenses. Except as set forth in the Stock Purchase
Agreement, all legal and other costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such costs and expenses.
Section 6.5 Notices. All notices and other communications hereunder
shall be sufficiently given for all purposes hereunder if in writing and
delivered personally, sent by documented overnight delivery service or, to the
extent receipt is confirmed, telecopy, telefax or other electronic transmission
service to the appropriate address or number as set forth below. Notices to the
Company shall be addressed to:
Brylane Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
California Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address and to the attention of such other person as the
Company may designate by written notice to Investor. Notices to Investor shall
be addressed to:
Pinault Printemps-Redoute
▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ Cedex 08
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇-▇▇-▇▇-▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Section 6.6 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors. Investor may assign its rights and obligations hereunder to one or
more majority-owned, direct or indirect subsidiaries or other affiliates.
-10-
Section 6.7 Headings. The Section, Article and other headings
contained in this Agreement are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Agreement. All references
to Sections or Articles contained herein mean Sections or Articles of this
Agreement unless otherwise stated.
Section 6.8 Amendments and Waivers. This Agreement may not be
modified or amended except by an instrument or instruments in writing signed by
the party against whom enforcement of any such modification or amendment is
sought. Either party hereto may, only by an instrument in writing, waive
compliance by the other party hereto with any term or provision hereof on the
part of such other party hereto to be performed or complied with. The waiver by
either party hereto of a breach of any term or provision hereof shall not be
construed as a waiver of any subsequent breach.
Section 6.9 Interpretation; Absence of Presumption. (a) For the
purposes hereof, (i) words in the singular shall be held to include the plural
and vice versa and words of one gender shall be held to include the other gender
as the context requires, (ii) the terms "hereof", "herein", and "herewith" and
words of similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole and not to any particular provision of this Agreement,
and Article, Section and paragraph references are to the Articles, Sections and
paragraphs to this Agreement unless otherwise specified, (iii) the word
"including" and words of similar import when used in this Agreement shall mean
"including, without limitation," unless the context otherwise requires or unless
otherwise specified, (iv) the word "or" shall not be exclusive, and (v)
provisions shall apply, when appropriate, to successive events and transactions.
(b) This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party
drafting or causing any instrument to be drafted.
Section 6.10 Severability. Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
Section 6.11 Further Assurances. The Company and Investor agree
that, from time to time, each of them will, and will cause their respective
Affiliates to, execute and deliver such further instruments and take such other
action as may be necessary to carry out the purposes and intents hereof.
Section 6.12 Specific Performance. The Company and Investor each
acknowledge that, in view of the uniqueness of arrangements contemplated by this
Agreement, the parties hereto would not have an adequate remedy at law for money
damages in the event that this Agreement were not performed in accordance with
its terms, and therefore agree that the parties hereto shall be entitled to
specific enforcement of the terms hereof in addition to any other remedy to
which the parties hereto may be entitled at law or in equity.
-11-
Section 6.13 Fiduciary Duties. Nothing contained in this Agreement
shall be intended to limit actions taken by any Directors in the exercise of
their fiduciary duties.
Section 6.14 Confidentiality; Other Arrangements. Investor will not,
and will use its best efforts to cause the Investor Nominees not to, share
confidential business information which comes into its possession in connection
with its investment in the Company or through the Board. Investor intends,
through its investment in the Company, that Investor and the Company will enter
into mutually advantageous arrangements, providing for the expansion of their
respective businesses.
-12-
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties hereto as of the day first above written.
BRYLANE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer, Secretary
and Treasurer
PINAULT PRINTEMPS-REDOUTE, S.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman And Chief Executive Officer
-13-