UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Phillips-Van Heusen Corporation
-------------------------------
(Name of Issuer)
Common Stock, par value $1.00 per share
---------------------------------------
(Title of Class of Securities)
718592 10 8
------------
(CUSIP Number)
Morris Orens, Esq.
Swidler Berlin Shereff Friedman, LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
(212) 973-0111
--------------------------
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and Communications)
February 12, 2003
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule13d-1(e), 13d-1(f) or 13d-1(g), check the
following box. [ ]
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
(Page 1 of 13 Pages)
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* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 2 of 13 Pages
SCHEDULE 13D
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CUSIP No. 718592 10 8
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Apax Partners Europe Managers Limited
-------- -----------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/ (b) / /
-------- -----------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
-------- -----------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
-------- -----------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / /
-------- -----------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
England
----------------------- ----- --------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY ----- --------------------------------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 13,809,519
REPORTING ----- --------------------------------------------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
0
----- --------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
13,809,519
-------- -----------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,809,519
-------- -----------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
N/A
-------- -----------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
33.2%
-------- -----------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 3 of 13 Pages
SCHEDULE 13D
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CUSIP No. 718592 10 8
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Apax Europe V GP Co. Limited
-------- -----------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/ (b) / /
-------- -----------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
-------- -----------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
-------- -----------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / /
-------- -----------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Guernsey
----------------------- ----- --------------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES ----- --------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 13,809,519
EACH ----- --------------------------------------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 0
----- --------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
13,809,519
-------- -----------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,809,519
-------- -----------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
N/A
-------- -----------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
33.2%
-------- -----------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
-------- -----------------------------------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 4 of 13 Pages
SCHEDULE 13D
--------------------------------------- ------------------------------------- --------------------------------------
CUSIP No. 718592 10 8
-------- -----------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Apax Managers, Inc.
-------- -----------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /x/ (b) / /
-------- -----------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
-------- -----------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
-------- -----------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
-------- -----------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
----------------------- ----- --------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 4,047,617
BENEFICIALLY ----- --------------------------------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 0
REPORTING ----- --------------------------------------------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
4,047,617
----- --------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
-------- -----------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,047,617
-------- -----------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
N/A
-------- -----------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.7%
-------- -----------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
-------- -----------------------------------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 5 of 13 Pages
ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to the shares of common stock, par value
$1.00 per share (the "Common Stock"), of Phillips-Van Heusen Corporation, a
Delaware corporation (the "Company"). The principal executive offices of the
Company are located at 200 Madison Avenue, New York, New York 10016.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is being filed by Apax Partners Europe Managers Limited
("Apax Europe Managers"), Apax Europe V GP Co. Limited ("Apax Europe V GP") and
Apax Managers, Inc. ("Apax Managers" and, together with Apax Europe Managers and
the Apax Europe V GP, the "Filing Persons").(1)
Apax Europe Managers is a company organized under the laws of England
the purpose of which is to serve as the discretionary investment manager of the
Europe V Funds (as defined below). Apax Europe V GP is a Guernsey company the
purpose of which is to act as the general partner of Apax Europe V GP, L.P. (the
"General Partner of the Europe V Funds"). The General Partner of the Europe V
Funds is a Delaware limited partnership the purpose of which is to act as the
general partner of certain private equity funds, including: (i) Apax Europe V-A,
L.P., a Delaware limited partnership ("Europe V-A"), (ii) Apax Europe V-B, L.P.,
an English limited partnership ("Europe V-B"), (iii) Apax Europe V C GmbH & Co.
KG, a German limited partnership ("Europe V-C"), (iv) Apax Europe V-D, L.P., an
English limited partnership ("Europe V-D"), (v) Apax Europe V-E, L.P., an
English limited partnership ("Europe V-E"), (vi) Apax Europe V-F, C.V., a Dutch
limited partnership ("Europe V-F"), (vii) Apax Europe V-G, C.V., a Dutch limited
partnership ("Europe V-G"), (viii) Apax Europe V-1, L.P., an English limited
partnership ("Europe V-1"), and (ix) Apax Europe V-2, L.P., an English limited
partnership ("Europe V-2" and, together with Europe V-A, Europe V-B, Europe V-C,
Europe V-D, Europe V-E, Europe V-F, Europe V-G and Europe V-1, the "Europe V
Funds"). The principal business address of Apax Europe Managers is 15 Portland
Place, London, England W1B 1PT, United Kingdom. The principal business address
of each of Apax Europe V GP, the General Partner of the Europe V Funds and the
Europe V Funds is 13-15 Victoria Road, St. Peter Port, Guernsey, Channel Islands
GY1 3ZD.
Apax Managers is a New York corporation the purpose of which is to act
as the general partner of Apax Excelsior VI Partners, L.P. (the "General Partner
of the Excelsior VI Funds"). The General Partner of the Excelsior VI Funds is a
Delaware limited partnership the purpose of which is to act as the general
partner of certain private equity funds, including: (i) Apax Excelsior VI, L.P.,
a Delaware limited partnership ("Excelsior VI"), (ii) Apax Excelsior VI-A C.V.,
a Dutch limited partnership ("Excelsior VI-A"), (iii) Apax Excelsior VI-B C.V.,
a Dutch limited partnership ("Excelsior VI-B"), and (iv) Patricof Private
Investment Club III, L.P., a Delaware limited partnership ("Patricof Private
Investment Club III" and, together with Excelsior VI, Excelsior VI-A and
Excelsior VI-B, the "Excelsior VI Funds"). The principal business address of
each of Apax Managers, the General Partner of the Excelsior VI Funds and the
Excelsior VI Funds is 445 Park Avenue, New York, New York 10022.
The name, business address, present principal occupation or employment
and citizenship of each executive officer and director of Apax Europe Managers
are set forth in Schedule A hereto and are incorporated herein by reference. The
name, business address, present principal occupation or employment and
citizenship of each executive officer and director of Apax Europe V GP are set
forth in
--------
(1) Neither the present filing nor anything contained herein will be construed
as an admission that any Filing Person constitutes a "person" for any purpose
other than for compliance with Section 13(d) of the Act.
Page 6 of 13 Pages
Schedule B hereto and are incorporated herein by reference. The name, business
address, present principal occupation or employment and citizenship of each
executive officer and director of Apax Managers are set forth in Schedule C
hereto and are incorporated herein by reference.
During the last five years, none of the Filing Persons, nor, to the
knowledge of each of the Filing Persons, any of (w) the Purchasers (as defined
below), (x) the General Partners of the Funds (as defined below), or (y) the
persons listed on Schedules A, B or C hereto, has been (i) convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(ii) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree, or final order enjoining future violations of, or prohibiting
or mandating activities subject, to federal or state securities laws or finding
any violation with respect to such laws.
The General Partner of the Europe V Funds and the General Partner of
the Excelsior VI Funds are referred to herein collectively as the "General
Partners of the Funds." The Europe V Funds and the Excelsior VI Funds are
referred to herein collectively as the "Purchasers."
The Filing Persons have entered into a Joint Filing Agreement, dated as
of February 12, 2003, a copy of which is attached hereto as Exhibit 1.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On February 12, 2003 (the "Closing Date"), pursuant to a Securities
Purchase Agreement, dated as of December 16, 2002, by and among the Company,
Lehman Brothers Inc. and the Purchasers (the "Purchase Agreement"), the
Purchasers purchased 10,000 shares (the "Series B Shares") of Series B
Convertible Preferred Stock of the Company (the "Series B Stock") for an
aggregate purchase price of $250,000,000 in cash. In addition, on the Closing
Date, pursuant to a Term Loan Agreement, dated as of December 16, 2002 as
subsequently amended on the Closing Date, by and among the Company, the
Purchasers and Apax Managers, the Purchasers provided the Company with a loan in
the amount of $125,000,000, $100,000,000 of which will be provided on the
Closing Date and $25,000,000 of which will be provided at the option of the
Company at any time prior to June 30, 2003. The loan (w) is secured, (x) matures
in two years and (y) bears interest at a rate of 10% per annum for the first
year and at 15% per annum for the second year.
The funds used by the Purchasers to purchase the Series B Shares were
obtained by such entities from capital contributions by their respective
partners.
None of the General Partners of the Funds, the Filing Persons or the
individuals listed on Schedules A, B or C hereto has contributed any funds or
other consideration towards the purchase of the securities of the Company except
insofar as they may have partnership interests in any of the Purchasers and have
made capital contributions to any of the Purchasers.
ITEM 4. PURPOSE OF TRANSACTION.
GENERAL
The purpose of the acquisition of the Series B Shares by the Purchasers
pursuant to the Purchase Agreement was to acquire a significant equity interest
in the Company and to provide the Company with financing for the Company's
acquisition of Calvin Klein, Inc. and its affiliates.
The Purchase Agreement is filed as Exhibit 2 hereto and is incorporated
herein by reference.
Page 7 of 13 Pages
CERTIFICATE OF DESIGNATIONS
On the Closing Date, the Company filed the Certificate of Designations
governing the Series B Stock (the "Certificate of Designations") with the
Secretary of State of the State of Delaware and issued to the Purchasers the
Series B Shares having the terms set forth in the Certificate of Designations.
The following discussion provides a description of certain provisions of the
Certificate of Designations that may relate to or result in a transaction event
or action enumerated in paragraphs (a) through (j) of Item 4 of the form of
Schedule 13D promulgated under the Act.
Rank. The Series B Stock ranks, as to dividends and upon Liquidation
(as defined below), senior and prior to the Common Stock, the Company's Series A
Cumulative Participating Preferred Stock and to all other classes or series of
stock issued by the Company. All equity securities of the Company to which the
Series B Stock ranks prior, with respect to dividends and upon Liquidation,
including, without limitation, the Common Stock and the Series A Stock, are
collectively referred to herein as "Junior Securities." The Company is
prohibited from having or creating any class of stock ranking on parity with, or
senior to, the Series B Stock, without the affirmative vote of the holders of a
majority of the Series B Shares, voting separately as a class.
Dividends. The holders of the Series B Shares are entitled to receive
cash dividends at the rate of 8% per annum (the "Dividend Rate") of the Series B
Issue Price (as defined below). Dividends are cumulative and compound at the
Dividend Rate as of each Dividend payment date. Dividends with respect to any
quarter may be paid in cash at the discretion of the board of directors of the
Company (the "Board") on the related Dividend payment date (hereinafter referred
to as the "Dividends"). Dividends not so paid in cash may not be paid in cash
until (i) Liquidation as part of the Liquidation Preference (as defined below)
or (ii) the Series B Shares have been redeemed.
Liquidation. Upon any liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary (a "Liquidation"), the holders of the
Series B Shares will be entitled, before any distribution or payment is made
upon any Junior Securities, to be paid an amount equal to (i) $25,000 per Series
B Share, representing the liquidation preference per Series B Share (as adjusted
for any combinations, divisions or similar recapitalizations affecting the
shares of Series B Stock) (the "Series B Issue Price"), plus (ii) all accrued
and unpaid Dividends on such Series B Share to such date (together with the
Series B Issue Price, the "Liquidation Preference"). If upon Liquidation, the
assets to be distributed among the holders of Series B Stock will be
insufficient to permit payment in full to the holders of Series B Stock of the
Liquidation Preference, then the entire assets of the Company will be
distributed ratably among such holders in proportion to the full respective
Liquidation Preference to which they are entitled.
Voting. On all matters put to a vote to the holders of Common Stock,
each holder of Series B Shares is entitled to the number of votes equal to the
number of shares of Common Stock into which such Series B Shares could be
converted.
Board Representation. For so long as at least sixty-five percent (65%)
of the Series B Shares issued on the Closing Date remain outstanding, the
holders of the Series B Stock, voting as a separate series, are entitled to
elect three (3) directors of the Company ("Series B Designees"); (B) if more
than thirty-five percent (35%) but less than sixty-five percent (65%) of the
shares of Series B Stock issued on the Closing Date remain outstanding, the
holders of the Series B Stock, voting as a separate series, will be entitled to
elect two (2) Series B Designees; and (C) if more than ten percent (10%) but
less than thirty-five percent (35%) of the shares of Series B Stock issued on
the Closing Date remain outstanding, the holders of the Series B Stock, voting
as a separate series, will be entitled to elect one (1) Series B Designee.
Page 8 of 13 Pages
Conversion. Each Series B Share is convertible at any time after the
Closing Date, at the option of the holder of record thereof, into the number of
fully paid and nonassessable shares of Common Stock equal to the quotient of (x)
the Liquidation Preference of such Series B Share being converted divided by the
conversion price per Series B Share. The initial conversion price per Series B
Share is $14.00 and is subject to adjustment from time to time as provided in
the Certificate of Designations.
Redemption. On or after the later of (A) the sixth month anniversary of
the Refinancing (as defined in the Certificate of Designations), or (B) November
1, 2008, the holders holding a majority of the Series B Shares have the right to
require the Company to redeem all or any portion of the Series B Stock owned by
such holder or holders at a price per share equal to one hundred percent of the
Liquidation Preference.
Protective Provisions. For so long as any of the Series B Shares are
outstanding, the Company will not, without first obtaining the written consent
or affirmative vote of holders of at least a majority of the Series B Shares
then outstanding, voting separately as a class, take any action with respect to
any of the following matters: (i) materially amend, alter, repeal, impair or
change, in any respect, the rights, preferences, powers, privileges,
restrictions, qualifications or limitations of the Series B Stock; (ii)
authorize, establish, create or issue any additional series of preferred stock
or any other new class or series of equity securities or any securities
convertible into equity securities of the Company, in each case which would have
a preference over, or be on a parity with, the Series B Stock with respect to
dividends or upon Liquidation; (iii) authorize or agree to authorize any
increase in the number of Series B Shares or issue any additional Series B
Shares; (iv) amend, alter or repeal any provision of the Company's Certificate
of Incorporation or bylaws which would adversely affect any right, preference,
privilege or voting power of the Series B Stock or the holders thereof; (v)
increase the number of directors of the Company above fourteen (14); (vi) incur
or assume Indebtedness (as defined in the Certificate of Designations), on a
consolidated basis, to an amount that exceeds 4.5 times the Consolidated EBITDA
(as defined in the Certificate of Designations) of the Corporation; (vii) except
for the Dividends, declare or pay any dividends (other than dividends payable
solely in shares of its Common Stock) on or declare or make any other
distribution, purchase, redemption or acquisition, directly or indirectly, on
account of any shares of the Company's preferred stock or Common Stock now or
hereafter outstanding; provided, however, that the Company is permitted to: (A)
purchase shares of Common Stock held by former employees of the Company,
provided, that such purchase occurs within 120 days of the date on which such
employee's employment with the Company ceased, and the aggregate amount of such
purchases do not exceed $5,000,000 in any 12 month period, (B) pay or declare
cash dividends on the shares of Common Stock in the same aggregate amount as was
paid in fiscal 2002, (C) declare or pay cash dividends on the shares of Common
Stock in excess of the 2002 aggregate amount, provided, that such cash dividends
do not exceed the average percentage of net income which dividends paid on the
Common Stock for the preceding three fiscal years; and (viii) redeem all of the
issued and outstanding Rights.
The foregoing description of the Certificate of Designations is not
intended to be complete and is qualified in its entirety by the complete text of
the Certificate of Designations, which is filed as Exhibit 3 hereto and is
incorporated herein by reference.
INVESTORS' RIGHTS AGREEMENT
On the Closing Date, the Company and the Purchasers entered into the
Investors' Rights Agreement (the "Investors' Rights Agreement"). The following
discussion provides a description of certain relevant provisions of the
Investors' Rights Agreement that may relate to or result in a transaction event
or action enumerated in paragraphs (a) through (j) of Item 4 of the form of
Schedule 13 D promulgated under the Act.
Page 9 of 13 Pages
Key Committees. For so long as any Series B Designee is a Director, the
Holders (as defined in the Investors' Rights Agreement) may require that at
least one Series B Designee be appointed, subject to compliance with applicable
law, to each or any of the following committees of the Board: (i) the Audit
Committee; (ii) the Compensation Committee; (iii) the Executive Committee; (iv)
the Nominating Committee; and (v) any other committee performing similar
functions of any of the foregoing committees.
Right to Participate in Sale and Third-Party Bid. Any Holder that
beneficially owns in excess of 10% of the voting securities of the Company will
be given the reasonable opportunity to participate in any bidding process in
connection with a Sale (as defined in the Investors' Rights Agreement) or
Third-Party Bid (as defined in the Investors' Rights Agreement).
Purchase Rights. For so long as at least 50% of the originally issued
Series B Shares remain outstanding, prior to the issuance or sale of any shares
of voting securities or derivative securities of the Company (other than
Excluded Shares (as defined in the Investors' Rights Agreement)), the Company
will first give to each Holder holding Series B Shares the opportunity to
purchase its ratable portion of such securities.
Restrictions. The Investors' Rights Agreement contains certain
restrictions on the Holders ability to (i) acquire (A) beneficial ownership of
any voting securities, derivative securities or any other securities of the
Company, or (B) the Company or any of its subsidiaries or all or substantially
all of the assets of the Company or any of its subsidiaries; (ii) engage in any
"solicitation" (within the meaning of Rule 14a-1 under the Act) of proxies or
consents relating to the election of directors with respect to the Company, or
become a "participant" in any "election contest" (within the meaning of the Act)
seeking to elect directors not nominated by the Board; (iii) induce or attempt
to induce any other person to initiate any stockholder proposal to seek election
to or seek to place a representative on the Board or seek the removal of any
member of the Board; (iv) deposit any voting securities, derivative securities
or any other securities of the Company in any voting trust or similar
arrangement (v) form or join in the formation of a 13D Group (as defined in the
Investors' Rights Agreement) with respect to any voting securities; and (vi)
sell, assign, transfer, pledge, hypothecate, grant any option with respect to or
otherwise dispose of any interest in any voting securities of the Company.
Termination. The Investors' Rights Agreement may be terminated by the
Purchasers at any time when the Purchasers beneficially own in the aggregate
less than 10% of the total voting power of the Company.
The foregoing description of the Investors' Rights Agreement is not
intended to be complete and is qualified in its entirety by the complete text of
the Investors' Rights Agreement, which is filed as Exhibit 4 hereto and is
incorporated herein by reference.
RIGHTS AGREEMENT AMENDMENT
In connection with the transactions contemplated by the Purchase
Agreement, the Board approved Amendment No. 5, dated as of February 12, 2003, to
the Rights Agreement, dated as of June 10, 1986, as amended (the "Rights
Agreement"), between the Company and The Bank of New York (successor to The
Chase Manhattan Bank, N.A., as rights agent). This amendment made the provisions
of the Rights Agreement inapplicable to the transactions contemplated by the
Purchase Agreement.
Page 10 of 13 Pages
OTHER PLANS AND PROPOSALS
Except as described above or otherwise described in this Schedule 13D,
the Filing Persons currently have no plans or proposals which relate to or would
result in any transaction, event or action enumerated in paragraphs (a) through
(j) of Item 4 of the form of Schedule 13D promulgated under the Act. Each of the
Filing Persons reserves the right, in light of its ongoing evaluation of the
Company's financial condition, business, operations and prospects, the market
price of the Common Stock, conditions in the securities markets generally,
general economic and industry conditions, its business objectives and other
relevant factors, to change its plans and intentions at any time, as it deems
appropriate. In particular, any one or more of the Filing Persons (and their
respective affiliates) reserves the right, in each case subject to (x) the
restrictions contained in the Transaction Documents (as defined in the Purchase
Agreement) and (y) any applicable limitations imposed on the sale of any of
their securities of the Company by the Securities Act of 1933, as amended (the
"Securities Act"), or other applicable law, to (i) purchase securities of the
Company, (ii) sell or transfer securities of the Company beneficially owned by
them from time to time in public or private transactions, and (iii) cause any of
the Purchasers to distribute in kind to their respective partners securities of
the Company. To the knowledge of each Filing Person, each of (w) the Purchasers,
(x) the General Partners of the Funds and (y) the persons listed on Schedules A,
B or C hereto may make similar evaluations from time to time or on an ongoing
basis.
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER.
(a) As of the Closing Date, each of Apax Europe Managers and Apax
Europe V GP may be deemed to beneficially own an aggregate of 13,809,519 shares
of Common Stock, representing in the aggregate approximately 33.2% of the
outstanding Common Stock, based on calculations made in accordance with Rule
13d-3(d) of the Act, which are represented by 7,733.33332 Series B Shares
acquired by the Europe V Funds pursuant to the Purchase Agreement.
As of the Closing Date, Apax Managers may be deemed to beneficially own
an aggregate of 4,047,617 shares of Common Stock, representing in the aggregate
approximately 12.7% of the outstanding Common Stock, based on calculations made
in accordance with Rule 13d-3(d) of the Act, which are represented by
2,266.66668 Series B Shares acquired by the Excelsior VI Funds pursuant to the
Purchase Agreement.
The number of Series B Shares acquired by each of the Purchasers
pursuant to the Purchase Agreement, the number of shares of Common Stock that
such Series B Shares are convertible into and the percentage of the outstanding
Common Stock such shares represent are set forth in Schedule D hereto and are
incorporated herein by reference.(2)
None of the Filing Persons or, to the knowledge of the Filing Persons,
(w) the Purchasers, (x) the General Partners of the Funds and (y) the persons
listed on Schedules A, B or C hereto beneficially owns any shares of Common
Stock other than as set forth herein.
(b) Each of Apax Europe Managers (who is responsible for making all
investment and management decisions for the Europe V Funds) and Apax Europe V GP
shares the power to vote or direct the vote and to dispose or to direct the
disposition of all 13,809,519 shares of Common Stock deemed beneficially owned
by it.
-----------------
(2) Neither the present filing nor anything contained herein shall be deemed an
admission that any of the Purchasers beneficially owns any Series B Shares or
shares of Common Stock.
Page 11 of 13 Pages
Apax Managers has the sole power to vote or direct the vote and to
dispose or to direct the disposition of all 4,047,617 shares of Common Stock
deemed beneficially owned by it.
(c) Except as described above, no transactions in the securities of the
Company were effected by the Filing Persons, or, to their knowledge, any of (w)
the Purchasers, (x) the General Partners of the Funds and (y) the persons listed
on Schedules A, B or C hereto, during the past sixty days.
(d) Except for the Purchasers who may have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale of,
any securities of the Company, no other person is known by any Filing Person to
have the right to receive or the power to direct the receipt of dividends from,
or the proceeds from the sale of, any securities of the Company beneficially
owned by any Filing Person.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
The responses set forth in Items 3 and 4 of this Schedule 13D are
incorporated herein by reference in their entirety.
INVESTMENT MANAGEMENT AGREEMENTS
Pursuant to the investment management agreements by and among Apax
Europe Managers, Apax Europe V GP and the General Partner of the Europe V Funds
(the "Investment Management Agreements"), Apax Europe Managers serves as the
discretionary investment manager of the portfolio of each of the Europe V Funds
with full power and authority to act as manager of the portfolio of each of the
Europe V Funds (including the exercise of all of the powers granted to the
General Partner of the Europe V Funds pursuant to the partnership agreements of
each of the Europe V Funds) and as such manager to manage the portfolio of each
of the Europe V Funds to the total exclusion of any other person (but in each
case acting under the supervision of the General Partner of the Europe V Funds).
Each of the Investment Management Agreements may be terminated by the General
Partner of the Europe V Funds at any time.
REGISTRATION RIGHTS AGREEMENT
On the Closing Date, the Company and the Purchasers entered into the
Registration Rights Agreement (the "Registration Rights Agreement"). Pursuant to
the Registration Rights Agreement, the Company granted the Purchasers the right,
subject to certain limitations and restrictions, (i) to require the Company, on
or prior to the 180th day following the Closing Date, to effect a registration
of shares of Registrable Securities (defined below), (ii) to require the
Company, at the request of the Purchasers, on three separate occasions to effect
a registration of shares of Registrable Securities and (iii) to require the
Company to include shares of Registrable Securities then held by the Purchasers
in any other registration by the Company of its equity securities under the
Securities Act. The Company agreed to pay certain expenses of the Purchasers in
connection with such registrations as provided for in the Registration Rights
Agreement. "Registrable Securities" means the shares of Common Stock into which
the Series B Shares are convertible and any additional shares of Common Stock
acquired by a Purchaser by way of a dividend, stock split, preemptive rights,
recapitalization or other distribution in respect of the Series B Shares.
Page 12 of 13 Pages
The foregoing description of the Registration Rights Agreement is not
intended to be complete and is qualified in its entirety by the complete text of
the Registration Rights Agreement, which is filed as Exhibit 5 hereto and is
incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 Joint Filing Agreement, dated as of February 12, 2003.
Exhibit 2 Securities Purchase Agreement, dated as of December 16, 2002, by
and among the Company, Lehman Brothers Inc. and the Purchasers.
Exhibit 3 Series B Convertible Preferred Stock Certificate of
Designations.
Exhibit 4 Investors Rights Agreement, dated as of February 12, 2003.
Exhibit 5 Registration Rights Agreement, dated as of February 12, 2003, by
and among the Company, Calvin Klein 2001 Revocable Trust, Barry
Schwartz, Trust for the Benefit of the Issue of Calvin Klein,
Trust for the Benefit of the Issue of Barry Schwartz, Stephanie
Schwartz-Ferdman, Jonathan Schwartz, and each of the Investors
signatory thereto.
Page 13 of 13 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
APAX PARTNERS EUROPE MANAGERS LIMITED
By: /s/ Clive Sherling
--------------------------------------
Name: Clive Sherling
Title: Managing Director
APAX EUROPE V GP CO. LIMITED
By: /s/ Constance A. E. Helyar
--------------------------------------
Name: Constance A. E. Helyar
Title: Managing Director
APAX MANAGERS, INC.
By: /s/ David Landau
--------------------------------------
Name: David Landau
Title: Vice President
SCHEDULE A
The name, title and present principal occupation of each director of
Apax Partners Europe Managers Limited ("Apax Europe Managers") are set forth
below. There are no executive officers of Apax Europe Managers.
The principal business address of each director of Apax Europe Managers
is c/o Apax Partners, Ltd., 15 Portland Place, London, England W1B 1PT, United
Kingdom.
Each director of Apax Europe Managers is a citizen of the United
Kingdom.
NAME TITLE PRINCIPAL OCCUPATION
---- ----- --------------------
Ronald Mourad Cohen Director Chairman of Apax Europe Managers and Apax Partners
Holdings Ltd., a company organized under the laws of
England, and its subsidiaries (the "Apax Group")
Paul Adrian Barlow Beecroft Director Director of Apax Europe Managers and the Apax Group
Peter David Englander Director Director of Apax Europe Managers and the Apax Group
Clive Richard Sherling Director Director of Apax Europe Managers and the Apax Group
John Phillips McMonigall Director Director of Apax Europe Managers and the Apax Group
Andrew Tobias Michael Wyles Director Director of Apax Europe Managers and the Apax Group
SCHEDULE B
The name, title and present principal occupation of each director of
Apax Europe V GP Co. Limited (the "Apax Europe V GP") are set forth below. There
are no executive officers of Apax Europe V GP.
The principal business address of each director of Apax Europe V GP,
except for Clive Sherling, is c/o International Private Equity Services, 13-15
Victoria Road, St. Peter Port, Guernsey, Channel Islands GY1 3ZD. Mr. Sherling's
principal business address is c/o Apax Partners Ltd., 15 Portland Place, London,
England W1B 1PT, United Kingdom.
Each director of Apax Europe V GP is a citizen of the United Kingdom.
NAME TITLE PRINCIPAL OCCUPATION
---- ----- --------------------
Clive Richard Sherling Director Director of Apax Europe Managers and the Apax Group
Constance A. E. Helyar Director Director of International Private Equity Services
Denise Jane Banks Director Director of International Private Equity Services
Arthur Jeremy Arnold Director Director of International Private Equity Services
SCHEDULE C
The name, title and present principal occupation of each director and
executive officer of Apax Managers, Inc. (the "Apax Managers") are set forth
below.
The principal business address of each director and executive officer
of Apax Managers is c/o Apax Partners, Inc., 445 Park Avenue, 11th Floor,
New York, New York 10022 ("Apax Partners").
Each director and executive officer of Apax Managers is a citizen of
the United States.
NAME TITLE PRINCIPAL OCCUPATION
---- ----- --------------------
Alan J. Patricof Director, Chairman of the Board Co-Chairman and General Partner of
and President Apax Partners
George M. Jenkins Director and Vice President General Partner of Apax Partners
Gregory M. Case Director and Vice President General Partner of Apax Partners
Salem D. Shuchman Director and Vice President General Partner of Apax Partners
David Landau Vice President General Partner of Apax Partners
Lori Rafield Vice President General Partner of Apax Partners
Ted Schell Vice President General Partner of Apax Partners
Paul Vais Vice President General Partner of Apax Partners
SCHEDULE D
NUMBER OF SHARES OF
COMMON STOCK THAT SUCH PERCENTAGE OF
NUMBER OF SERIES B SHARES ARE OUTSTANDING
PURCHASER SERIES B SHARES CONVERTIBLE INTO COMMON STOCK
--------- --------------- ---------------- -------------
Apax Europe V-A, L.P. 4,833.61884 8,631,462 23.7%
Apax Europe V-B, L.P. 869.414 1,552,525 5.3%
Apax Europe V C GmbH & Co. KG 494.2742 882,632 3.1%
Apax Europe V-D, L.P. 651.42416 1,163,257 4.0%
Apax Europe V-E, L.P. 648.7906 1,158,554 4.0%
Apax Europe V-F, L.P. 114.13076 203,804 .7%
Apax Europe V-G, L.P. 114.13076 203,804 .7%
Apax Europe V-1, L.P. 3.68736 6,584 .02%
Apax Europe V-2, L.P. 3.86264 6,897 0.02%
Apax Excelsior, VI, L.P. 1,936.640 3,458,285 11.1%
Apax Excelsior VI-A C.V. 158.21332 282,523 1.0%
Apax Excelsior VI-B C.V. 105.62668 188,619 .7%
Patricof Private Investment Club III, L.P. 66.18668 118,190 .4%
EXHIBIT INDEX
Exhibit 1 Joint Filing Agreement, dated as of February 12, 2003.
Exhibit 2 Securities Purchase Agreement, dated as of December 16, 2002, by
and among the Company, Lehman Brothers Inc. and the Purchasers.
Exhibit 3 Series B Convertible Preferred Stock Certificate of Designations.
Exhibit 4 Investors Rights Agreement, dated as of February 12, 2003, by and
among the Purchasers and the Company.
Exhibit 5 Registration Rights Agreement, dated as of February 12, 2003, by
and among the Company, Calvin Klein 2001 Revocable Trust, Barry
Schwartz, Trust for the Benefit of the Issue of Calvin Klein,
Trust for the Benefit of the Issue of Barry Schwartz, Stephanie
Schwartz-Ferdman, Jonathan Schwartz, and each of the Investors
signatory thereto.