EXHIBIT 4.1
Amendment to Stockholders Agreement
This Amendment to Stockholders Agreement (the "Amendment") is entered into
as of August 25, 2001 by Xxxxxx'x Trading Company, Inc. ("Xxxxxx'x"), FS Equity
Partners IV, L.P., G Trademark, Inc., The Limited, Inc. and Benchmark Capital
Partners IV, L.P. (collectively, the "Holders"), who are parties to the
Stockholders Agreement dated as of August 31,1999 relating to Xxxxxx'x, as
amended by that certain Agreement To Be Bound dated as of November 12, 1999 by
Benchmark Capital Partners IV, L.P. and that certain Second Amendment to
Stockholders Agreement dated as of May 24, 2001 (the "Stockholders Agreement").
Capitalized terms used but not defined herein have the meanings ascribed to them
in the Stockholders Agreement.
WHEREAS, the Holders wish to make certain amendments to Section 4.2 and
Section 7.3 of the Stockholders Agreement; and
WHEREAS, the Holders hold sufficient Shares and are otherwise able to make
amendments to the Stockholders Agreement under Section 7.3 thereof.
The parties agree as follows:
Section 1. Amendments to the Stockholders Agreement.
1.1 Amendments to Section 4.2. Section 4.2 of the Stockholders
Agreement is hereby amended by inserting, at the end thereof, immediately
following the period, a comma and the words "and provided, further, that this
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Section 4.2 shall not apply to the purchase by any Stockholder or its
affiliates, in market transactions, of fewer than an aggregate of 1,000,000
Shares for such Stockholder and all of its affiliates."
1.2 Amendments to Section 7.3. Section 7.3(b) of the Stockholders
Agreement is hereby amended by inserting, immediately following the word
"outstanding" and before the semicolon in the second line thereof, the words
"and held by Stockholders".
Section 2. Miscellaneous.
2.1 Limited Amendment. Nothing in this Agreement shall be deemed to
constitute a waiver by any party of compliance by any other party with respect
to any other term, provision or condition of the Stockholders Agreement not
specifically addressed herein. Except as expressly set forth herein, the terms,
provisions and conditions of the Stockholders Agreement shall remain in full
force and effect and in all other respects are hereby ratified and confirmed.
2.2 Governing Law. This Amendment shall be construed in accordance
with and governed by the laws of the State of New York (without regard to the
choice of law provisions thereof).
2.3 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
XXXXXX'X TRADING COMPANY, INC.
By: /s/ C. Xxxxx Xxxx
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Name: C. Xxxxx Xxxx
Title: Executive Vice President,
General Counsel and Secretary
FS EQUITY PARTNERS IV, L.P.
By: FS CAPITAL PARTNERS, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Managing Member
G TRADEMARK, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE LIMITED, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President-Treasury,
Mergers and Acquisitions
BENCHMARK CAPITAL PARTNERS
IV, L.P.
As nominee for
Benchmark Capital Partners IV, L.P.
Benchmark Founders' Fund IV, L.P.
Benchmark Founders' Fund IV-A, L.P.
and related individuals
By: Benchmark Capital Management Co.
IV, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Managing Member
