Exhibit 4.1.2
SECOND AMENDMENT TO
STOCKHOLDERS AGREEMENT
This Second Amendment (the "Amendment") to the Stockholders Agreement (the
"Agreement") dated as of August 31, 1999 among Xxxxxx'x Trading Company, Inc.,
an Indiana corporation (the "Company"), FS Equity Partners IV, L.P., a Delaware
limited partnership ("the "FS Stockholder"), The Limited, Inc., a Delaware
corporation ("The Limited") and G Trademark, Inc., a Delaware corporation and a
wholly owned subsidiary of The Limited (together with The Limited, the "Limited
Stockholders"), as amended by the Agreement To Be Bound dated as of November 12,
1999 by Benchmark Capital Partners IV, L.P., is made and entered into as of May
24, 2001 by and among the parties to the Agreement, as so amended. All
capitalized terms used herein but not defined herein shall have the meanings
given them in the Agreement.
R E C I T A L S:
WHEREAS, the parties hereto entered into the Agreement, pursuant to which
certain aspects of their relationship as holders of Holder Securities are
governed;
WHEREAS, the parties hereto wish to amend Article V of the Agreement to be
effective upon the consummation of the Company's initial public offering (the
"Effective Time").
NOW, THEREFORE, the parties hereby agree, effective as of the Effective
Time, as follows:
Section 1. AMENDMENT
---------
1.1 Section 5.1(a) of Article V of the Agreement is hereby amended by
deleting such paragraph 5.1(a) in its entirety and substituting therefor the
following:
"(a) The parties shall use their reasonable best efforts to ensure
that the Board shall consist of not more than thirteen members. Subject to
Section 5.1(d) hereof and the last sentence of this Section 5.1(a), in
connection with the election of directors by the shareholders of the Company:
(i) The Limited Stockholders shall collectively be entitled,
but not required, to nominate two members (the "Limited Nominees") of the
Board;
(ii) The FS Stockholder shall be entitled, but not required,
to nominate four members (the "FS Nominees") of the Board;
(iii) The then current Chief Executive Officer of the Company
shall be nominated as one member of the Board;
(iv) Xxxxxx Xxxxxxxx, the current Chairman of the Board, shall
be nominated as one member of the Board for so long as he is willing and,
in the reasonable judgment of the FS Stockholder, able to so serve; and
(v) The remaining Board nominees shall be mutually agreed upon
by the Limited Stockholders and the FS Stockholder (including without
limitation any independent directors as may be required under applicable
law, stock exchange requirements or by the National Association of
Securities Dealers ("NASD")); provided however that if the Limited
Stockholders and the FS Stockholder cannot agree, the remaining Board
nominees shall be chosen by the Company's Board.
The parties agree that the Board as of the Effective Time shall consist of
Xxxxxxx X. Xxxxx and Xxxxxx Xxxxxxxxxx (as Limited Nominees), Xxxx X. Xxxxxxxx,
Xxxx X. Xxxx, Xxxxxx X. Xxxxxx and Xxxxx Xxxxxxxx (as FS Nominees), Xxxxxx X.
Xxxx, Xxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxxx; and the parties acknowledge,
consistent with the Company's charter documents and the first sentence of this
Section 5.1(a) and clause (v) of this Section 5.1(a), that additional members of
the Board will be named after the Effective Time in order to satisfy applicable
NASD requirements and maintain an odd number of directors.
Nothing contained in this Section 5.1 shall be deemed to restrict the
exercise by the directors of the Company of their fiduciary obligations to the
Company's shareholders under Indiana law."
1.2 Section 5.1(b)(ii) of Article V of the Agreement is hereby amended by
deleting such paragraph 5.1(b)(ii) in its entirety and substituting therefore
the following:
2
"(ii) Each of the Company and each Stockholder hereby agrees to
use its best efforts to call, or cause the appropriate officers and
directors of the Company to call, a special meeting of stockholders
of the Company, and each Stockholder hereby agrees to vote or cause
to be voted all of the Shares beneficially owned or held of record
by such Stockholder for, or to take or cause to be taken all actions
by written consent in lieu of any such meeting necessary to cause,
the removal for cause of (i) any Limited Nominee if the Limited
Stockholders request such director's removal for cause, and (ii) any
FS Nominee if the FS Stockholder requests such director's removal
for cause. The Limited Stockholders or the FS Stockholder shall have
the right to designate a new nominee by written notice to the
Company in the event any Limited Nominee or FS Nominee, as the case
may be, shall be so removed or shall vacate his directorship for any
reason. If any nominee to the Board is unwilling or unable to serve
as such or is removed from office by the Stockholder that nominated
him or her, such Stockholder promptly shall nominate the successor
to such nominee. Such successor shall be appointed as soon as
possible, but in no event later than five Business Days from the
date any vacancy first occurs. The written notice of a Stockholder
nominating a member of the Board shall in each case set forth such
nominee's business and residence addresses and business telephone
number. Each Stockholder shall promptly give written notice to the
other Stockholders of any change in the business or residence
address or business telephone number of any of its nominees on the
Board."
1.3 Section 5.1(c) of Article V of the Agreement is hereby amended by
deleting such paragraph 5.1(c) in its entirety and substituting therefor the
word "Reserved. "
Section 2. MISCELLANEOUS
-------------
2.1 Counterparts
------------
This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
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).
[Remainder of this page intentionally left blank.]
3
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date set forth above.
XXXXXX'X TRADING COMPANY, INC.
By:__________________________________
Name:
Title:
FS EQUITY PARTNERS IV, L.P.
By: FS CAPITAL PARTNERS, LLC
Its: General Partner
By:_______________________________
Name:
Title:
THE LIMITED, INC.
By:__________________________________
Name:
Title:
G TRADEMARK, INC.
By:__________________________________
Name:
Title:
4
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:_________________________________
Name:
Title:
5
