NEW
YORK & COMPANY, INC.
AMENDMENT NO. 5 TO
THE
STOCKHOLDERS
AGREEMENT
This Amendment (“
Amendment
”) to the Stockholders Agreement
dated as of August 25, 2004 (the “
Stockholders
Agreement
”), by and among New York & Company, Inc., a
Delaware corporation (the “
Company
”) and
the Stockholders named therein, is being entered into as of August 16, 2006.
Certain capitalized terms used but not defined herein have the meaning
attributed to them in the Stockholders Agreement.
WHEREAS, certain of the
parties hereto are parties to the Stockholders Agreement, which embodied
certain agreements among the parties; and
WHEREAS, in connection
with the Company’s desire to increase the number of members on the Company’s
board of directors to, among other things, facilitate the Company’s compliance
with the requirements of the New York Stock Exchange with respect to the
composition of the Company’s board of directors and its committees, the parties
hereto wish to amend the Stockholders Agreement. This Amendment shall be deemed to be
effective as of August 1, 2006.
NOW, THEREFORE, in
consideration of the mutual conditions and agreements set forth in the
Stockholders Agreement and this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree to amend the Stockholders Agreement as follows:
Section 1.1(a) (i) of
Article I of the Stockholders Agreement is hereby amended as follows:
ARTICLE I
VOTING AGREEMENT
1.1
Voting
Agreement
. Subject to
Section 1.2
:
(a)
Board
of Directors
(i)
Each
Voting Agreement Holder hereby agrees that such Person shall vote, or cause to
be voted, all voting securities of the Company over which such Person has the
power to vote or direct the voting, and shall take all other reasonably
necessary or desirable actions within such Person’s control, whether in such
Person’s capacity as a stockholder, director, member of a board committee or
officer of the Company or otherwise, and including, without limitation,
attendance at meetings in person or by proxy for purposes of obtaining a quorum
and execution of written consents in lieu of meetings (collectively, “
Stockholder Action
”), and the Company
shall take all reasonably necessary or desirable actions within its control
(including, without limitation, calling special board and stockholder
meetings), to cause the authorized number of directors on the Board of
Directors of the Company (the “
Board
”)
to be twelve directors, and so that the following individuals shall be elected
to the Board and caused to remain in office:
(A)
Crystal,
for so long as Crystal serves as an executive officer of the Company;
(B)
Ristau,
for so long as Ristau serves as an executive officer of the Company; and
(C)
the
remainder to be individuals designated by the BSMB Majority Holders.
************
Effect of Amendment:
Except
as expressly set forth herein, the amendments set forth herein shall not by
implication or otherwise limit, impair, constitute a waiver or amendment of, or
otherwise affect, the rights or remedies of any of the parties under the
Stockholders Agreement, and shall not alter, modify, amend or in any way affect
any of the terms, conditions, obligations, covenants or agreements contained in
the Stockholders Agreement, which shall continue in full force and effect. The amendments herein shall apply and be
effective only with respect to the matters expressly covered hereby.
Governing Law;
Jurisdiction
:
The
corporate law of the State of Delaware shall govern all issues and questions
concerning the relative rights of the Company and its stockholders. All other issues and questions concerning the
construction, validity, interpretation and enforceability of this Amendment
shall be governed by, and construed in accordance with, the laws of the State
of New York, without giving effect to any choice of law or conflict of law
rules or provisions (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of New York. The
parties hereto hereby irrevocably and unconditionally submit to the exclusive
jurisdiction of any State or Federal court sitting in New York, New York over
any suit, action or proceeding arising out of or relating to this
Amendment. The parties hereby agree that
service of any process, summons, notice or document by U.S. registered mail
addressed to any such party shall be effective service of process for any
action, suit or proceeding brought against a party in any such court. The parties hereto hereby irrevocably and
unconditionally waive any objection to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. The parties hereto
agree that a final judgment in any such suit, action or proceeding brought in
any such court shall be conclusive and binding upon any party and may be
enforced in any other courts to whose jurisdiction any party is or may be
subject, by suit upon such judgment.
2
Waiver of Jury Trial
: EACH
OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AMENDMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN
STATEMENT OR ACTION OF ANY PARTY HERETO
Counterparts
: This
Amendment may be executed in multiple counterparts, each of which shall be an
original and all of which taken together shall constitute one and the same agreement.
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