AMENDMENT Dated as of June 8, 2010 TO THE STOCKHOLDERS AGREEMENT dated as of May 6, 2010 by and among Phillips-Van Heusen Corporation, Tommy Hilfiger Holding S.a.r.l, Stichting Administratiekantoor Elmira, Apax Europe VI-A, L.P., Apax Europe VI-1,...
EXHIBIT 4.12
AMENDMENT
Dated as of June 8, 2010
TO THE STOCKHOLDERS AGREEMENT
dated as of May 6, 2010
by and among
Xxxxxxxx-Van Heusen Corporation,
Xxxxx Xxxxxxxx Holding S.a.r.l,
Stichting Administratiekantoor Elmira,
Apax Europe VI-A, L.P.,
Apax Europe VI-1, L.P.,
Apax US VII, L.P.
and
each of the Other Signatories thereto
AMENDMENT TO STOCKHOLDERS AGREEMENT
THIS AMENDMENT TO THE STOCKHOLDERS AGREEMENT, dated as of June 8, 2010 (this “Amendment”), is being entered into by and among Xxxxxxxx-Van Heusen Corporation, a Delaware corporation (the “Company”), Xxxxx Xxxxxxxx Holding S.a.r.l., a Luxembourg limited liability company (“LuxCo”), Stichting Administrekantoor Elmira, a foundation under Dutch law (stichting) (the “Foundation”), Apax Europe VI-A, L.P., a limited partnership under English law (“Apax Europe VI-A, L.P.”), Apax Europe VI-1, L.P., a limited partnership under English law (“Apax Europe VI-1, L.P.”) and Apax US VII, L.P., an exempted limited partnership under Cayman Islands law (“Apax US VII, L.P.”). Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Stockholders Agreement dated as of May 6, 2010 (the “Stockholders Agreement”).
RECITALS:
A.
In connection with the Closing, on May 6, 2010, the parties hereto entered into the Stockholders Agreement.
B.
The parties now wish to amend the Stockholders Agreement as set forth in this Amendment, as permitted by Section 7.1 of the Stockholders Agreement, in order to clarify certain understandings and agreements among the parties.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, intending to be legally bound, the parties hereto agree as follows:
1.
Amendment of Section 1.1.
The definition of “Governance Rights Termination Threshold” set forth in the Stockholders Agreement is hereby amended and restated in its entirety to read as follows:
“Governance Rights Termination Threshold” means a number of shares equal to the greater of (a) 2,180,552 shares of Company Common Stock, which number shall be appropriately adjusted in good faith as necessary to give effect to any stock split or combination, or any reclassification, recapitalization, merger, consolidation, exchange or other similar reorganization or business combination affecting the Company Common Stock after May 6, 2010 and (b) 4% of the then issued and outstanding shares of Company Common Stock.
2.
References to the Stockholders Agreement; Construction. This Amendment shall be interpreted and construed together with, and as part of, the Stockholders Agreement. After giving effect to this Amendment, each reference in the Stockholders Agreement to “this Agreement”, “hereof”, “hereunder” or words of like import referring to the Stockholders Agreement, and any reference in any other document to the Stockholders Agreement, shall refer to the Stockholders Agreement as amended by this Amendment; provided that all references in
the Stockholders Agreement to “the date of this Agreement” or “the date hereof” shall refer to May 6, 2010.
3.
Other Miscellaneous Terms. The provisions of Article VII (Miscellaneous) of the Stockholders Agreement shall apply mutatis mutandis to this Amendment, and to the Stockholders Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms therein as modified hereby.
4.
No Further Amendment. Except as amended by this Amendment, the Stockholders Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date and year first above written.
XXXXXXXX-VAN HEUSEN CORPORATION
By:
/s/ Xxxx X. Xxxxxxx
Name:
Xxxx X. Xxxxxxx
Title:
Senior Vice President
STICHTING ADMINISTRIEKANTOOR ELMIRA
By:
/s/ Matthijs Xxxxxxx
Name:
Matthijs Xxxxxxx
Title: Managing Director
XXXXX XXXXXXXX HOLDING S.A.R.L.
By: NOVA LIQUIDATOR LTD, its managing liquidator
By:
/s/ Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
Title:
Duly Empowered
APAX WW NOMINEES LTD., AS NOMINEE FOR APAX EUROPE VI - A, L.P. AND APAX EUROPE VI - 1, L.P.
FOR AND ON BEHALF OF APAX PARTNERS EUROPE MANAGERS LIMITED, AS MANAGER OF APAX EUROPE VI - A, L.P.
By:
/s/ Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title: Director
By:
/s/ Xxxx Xxxxxxxxxx
Name:
Xxxx Xxxxxxxxxx
Title: Director
FOR AND ON BEHALF OF APAX PARTNERS EUROPE MANAGERS LIMITED, AS MANAGER OF APAX EUROPE VI - 1, L.P.
By:
/s/ Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title: Director
By:
/s/ Xxxx Xxxxxxxxxx
Name:
Xxxx Xxxxxxxxxx
Title: Director
APAX US VII, L.P.
By:
APAX US VII GP, L.P., its general partner
By:
APAX US VII GP, LTD., its general partner
By:_/s/ Christian Stahl_____________________
Name:
Xxxxxxxxx Xxxxx
Title: Partner
