Exhibit (d)(ii)
CONSENT AND JOINDER AGREEMENT
CONSENT AND JOINDER AGREEMENT dated August 10, 2004 by and among MARK NITZBERG, an individual with an address at 86 Rock Road West, Green Brook, New Jersey 08812 (“Nitzberg”), JACLYN, INC., a Delaware corporation with an address at 635 59th Street, West New York, New Jersey 07093 (“Jaclyn”), and the persons listed on the signature pages hereto (the “Present Stockholders”).
BACKGROUND
Jaclyn and the Present Stockholders are parties to an Amended and Restated Stockholders’ Agreement dated as of May 12, 2003 (the “Stockholders’ Agreement”) pursuant to which, among other things, Jaclyn and the Present Stockholders have agreed to certain provisions relating to the voting and disposition of the shares of common stock, $1.00 par value per share (the “Common Stock”) owned by them or as to which they may have or share the right to vote.
Nitzberg has acquired 120,000 shares of Common Stock and desires to become a party to the Stockholders’ Agreement and the Present Stockholders have agreed that Nitzberg may become a party to the Stockholders’ Agreement, all upon the terms and subject to the conditions set forth in this Consent and Joinder Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and in the Stockholders’ Agreement, and for other good and valuable consideration, Nitzberg and the Present Stockholders hereby agree as follows:
1. Definitions. Capitalized terms used but not defined in this Consent and Joinder Agreement shall have the meanings assigned to those terms in the Stockholders’ Agreement.
2. Joinder. Nitzberg hereby consents and agrees, effective as of the date hereof, to being added and obligated as a Stockholder under the Stockholders’ Agreement and the Present Stockholders hereby consent and agree to the foregoing.
3. Amendments to Stockholders’ Agreement. (a) All references to “Stockholder” or Stockholders” in the Stockholders’ Agreement shall be deemed to include Nitzberg, and the respective definitions of those terms are each hereby amended to include Nitzberg.
(b) Schedule A to the Stockholders’ Agreement is hereby amended to add the name and address of Nitzberg as follows:
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Mark Nitzberg |
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86 Rock Road West |
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Green Brook, New Jersey 08812 |
(c) Nitzberg shall be a member of the Robert Chestnov Stockholder Group and, in that regard, Schedule B to the Stockholders’ Agreement is hereby amended to add the name “Mark Nitzberg” to the end of the page captioned “ROBERT CHESTNOV STOCKHOLDER GROUP”.
4. Miscellaneous. (a) Except as amended hereby, the Stockholders’ Agreement, and all documents, instruments and agreements executed and/or delivered in connection therewith, shall remain in full force and effect and are hereby ratified and confirmed.
(b) This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to principles of conflicts of law.
(c) This Agreement may be executed in two or more counterparts, each of which shall be considered to be an original, but all of which, when taken together, shall constitute one and the same instrument.
(d) Headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect.
(e) Any signature received by facsimile or electronic transmission shall be deemed an original signature hereto.
(remainder of page intentionally left blank)
IN WITNESS WHEREOF, Jaclyn, Nitzberg and the Present Stockholders have executed this Consent and Joinder Agreement as of the day and year first above written.
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JACLYN, INC. | ||
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By: /s/ Robert Chestnov | ||
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Name: Robert Chestnov | ||
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Title: President | ||
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/s/Mark Nitzberg |
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Mark Nitzberg |
(signatures continue on next page)
STOCKHOLDER SIGNATURES
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/s/Abe Ginsburg |
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/s/David Hartstein |
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Abe Ginsburg |
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David Hartstein |
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/s/Sylvia Ginsburg |
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/s/Aimee Hartstein Thomas |
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Sylvia Ginsburg |
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Aimee Hartstein Thomas |
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/s/Howard Ginsburg |
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/s/Scott Hartstein |
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Howard Ginsburg |
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Scott Hartstein |
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/s/Randi Zinz Ginsburg |
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Rohan Thomas |
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Randi Zinz Ginsburg |
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/s/Rachel Hartstein |
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/s/Howard Ginsburg |
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Rachel Hartstein |
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Howard Ginsburg custodian for |
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Joshua Zinz Ginsburg |
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/s/Marvin Schwartz |
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/s/Howard Ginsburg |
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Marvin Schwartz |
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Howard Ginsburg custodian for |
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THE JACOB GINSBURG FOUNDATION | |
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Zachary Zinz Ginsburg |
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By: /s/Abe Ginsburg |
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/s/Howard Ginsburg |
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Print Name: Abe Ginsburg |
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Howard Ginsburg custodian for |
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Print Title: Director |
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Alexa Zinz Ginsburg |
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ABE AND SYLVIA GINSBURG FOUNDATION |
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/s/Bernice Gailing Schwartz |
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By: /s/Abe Ginsburg |
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Bernice Gailing Schwartz |
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Print Name: Abe Ginsburg |
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/s/Stephanie Dara Gailing |
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Print Title: Director |
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Stephanie Dara Gailing |
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/s/Eric Lee Gailing |
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Eric Lee Gailing |
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/s/Jaclyn Hartstein |
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Jaclyn Hartstein |
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STOCKHOLDER SIGNATURES
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NATMART LTD. |
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/s/Mickey Wolf |
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By: /s/Allan Ginsburg |
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Mickey Wolf |
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Print Name: Allan Ginsburg |
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/s/Melissa Ginsburg |
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Print Title: General Partner |
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Melissa Ginsburg |
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/s/Natalie Ginsburg |
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/s/Bonnie Sue Levy |
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Natalie Ginsburg |
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Bonnie Sue Levy for Jordyn |
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/s/Bonnie Sue Levy |
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Lichtstein, a minor |
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Bonnie Sue Levy |
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/s/Stephanie Zucker |
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/s/Jamie Levy |
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Stephanie Zucker |
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Jamie Levy |
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NATALIE AND MARTIN GINSBURG FOUNDATION | |||||
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/s/Sherri Ann Levy |
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By: /s/Natalie Ginsburg |
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Sherri Ann Levy |
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Print Name: Natalie Ginsburg |
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Print Title: |
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/s/Robyn Levy Wolf |
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ALLAN AND CAROLYN GINSBURG FOUNDATION | |||
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Robyn Levy Wolf |
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By: /s/Allan Ginsburg |
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/s/Allan Ginsburg |
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Print Name: Allan Ginsburg |
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Allan Ginsburg |
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Print Title: President |
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/s/Carolyn Ginsburg |
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Carolyn Ginsburg |
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/s/Allan Ginsburg |
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Allan Ginsburg, custodian for |
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Gregory Ginsburg |
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/s/Allan Ginsburg |
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Allan Ginsburg custodian for |
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Kathryn Ashley Ginsburg |
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/s/Jeffrey Ginsburg |
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Jeffrey Ginsburg |
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/s/Kenneth Ginsburg |
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Kenneth Ginsburg |
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STOCKHOLDER SIGNATURES
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/s/Robert Chestnov |
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ALEX CHESTNOV MEMORIAL FOUNDATION | |||
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Robert Chestnov |
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By: /s/Robert Chestnov |
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/s/Sheila Chestnov |
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Print Name: Robert Chestnov |
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Print Title: Trustee |
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Sheila Chestnov |
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/s/Stephanie Chestnov |
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/s/Sheila Chestnov |
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Stephanie Chestnov |
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Sheila Chestnov custodian for |
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Robyn Jill Chestnov |
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/s/Richard Chestnov |
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/s/Sheila Chestnov |
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Richard Chestnov for Alexis |
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Chestnov, a minor |
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Sheila Chestnov custodian for |
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Michael Steven Chestnov |
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/s/Hannah Chestnov |
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Hannah Chestnov |
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/s/Richard Chestnov |
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Richard Chestnov, Trustee under |
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Estate of Alex Chestnov-Non Marital Trust B |
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/s/Robert Chestnov |
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Robert Chestnov, Trustee under |
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Estate of Alex Chestnov-Non-Marital Trust B |
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/s/Richard Chestnov |
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Richard Chestnov |
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/s/Neil Schiller |
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Neil Schiller |
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/s/Robyn Schiller |
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Robyn Schiller |
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