Exhibit 10.20
AMENDMENT NO. 2 TO STOCKHOLDERS' AGREEMENT
This Amendment No. 2 to Stockholders' Agreement (this "Amendment") is
entered into as of June 24, 2003 by and among Aeropostale, Inc., f/k/a
MSS-Delaware, Inc., a Delaware corporation (the "Company"), Bear Xxxxxxx MB
1998-1999 Pre-Fund, LLC, a Delaware limited liability company and
successor-in-interest to MSS Acquisition Corp. II, a Delaware corporation ("Bear
Xxxxxxx"), and Xxxxxx X. Xxxxxx (the "Majority Management Holder").
WHEREAS, the Company, Bear Xxxxxxx, Federated Specialty Stores, Inc., a
Delaware corporation, Xxxxx X. Xxxxxxx, Xxxx X. Xxxxx and the Majority
Management Holder entered into a certain Stockholders' Agreement, dated as of
August 3, 1998 (the "Stockholders' Agreement"), pursuant to which the Company
granted certain registration rights to the parties with respect to shares of the
Company's common stock;
WHEREAS, the Company has determined that it is in the best interests of all
of its stockholders to consummate a secondary offering of its common stock and
in order to do so, to amend certain registration rights contained in the
Stockholders' Agreement as provided herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the Company, Bear Xxxxxxx and the
Majority Management Holder hereby agree as follows:
1. Amendments to Section 1.
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The provisions of Section 1 of the Stockholders' Agreement are hereby
amended by adding the following definition (with such new definition being
placed alphabetically among the existing definitions contained in Section 1):
"Subsequent Offering" means any offering of the Common Stock of the Company
following the IPO pursuant to a registration statement which has been declared
effective under the Securities Act.
2. Amendments to Section 4.1.1.
----------------------------
The provisions of Section 4.1.1 of the Stockholders' Agreement are hereby
amended by inserting the following proviso and the end of the first sentence of
such Section, before the period:
"provided, however, that in the case of the Company's IPO, and any
-------- Subsequent Offering only Stockholders holding Founder Shares
shall have the rights set forth in this Section 4.1.1"
3. Waiver of Notification.
-----------------------
Each Stockholder (as defined in the Stockholders' Agreement) shall be
deemed to have waived any notice required by Section 4.1.1 of the Stockholders'
Agreement with respect to the IPO (as defined in the Stockholders' Agreement, as
amended hereby).
4. Miscellaneous.
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(a) This Amendment may be executed in several counterparts and by each
party on a separate counterpart, each of which when so executed and delivered
shall be an original, and all of which together shall constitute one instrument.
(b) This Amendment expresses the entire understanding of the parties with
respect to the transactions contemplated hereby. No prior negotiations or
discussions shall limit, modify, or otherwise affect the provisions hereof.
(c) Any determination that any provision of this Amendment or any
application hereof is invalid, illegal or unenforceable in any respect and in
any instance shall not effect the validity, legality, or enforceability of such
provision in any other instance, or the validity, legality or enforceability of
any other provisions of this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
as of the date first above written.
AEROPOSTALE, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman and
Chief Executive Officer
BEAR XXXXXXX MB 1998-1999
PRE-FUND, LLC
By: /s/ Xxxx X. Xxxxxx
------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing
Director
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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