form8k.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): April 10, 2009
American
Apparel, Inc.
(Exact
Name of Registrant as Specified in Charter)
Delaware
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001-32697
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20-3200601
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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747
Warehouse Street, Los Angeles, CA
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90021-1106
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (213) 488-0226
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01 Entry into a Material Definitive Agreement.
On
April 10, 2009, American Apparel, Inc. (the “Company”) and Lion/Hollywood L.L.C.
(“Lion”) entered into an amendment (the “Amendment”) to that certain Investment
Agreement, dated as of March 13, 2009 (the “Original Investment Agreement”), by
and between the Company and Lion (as successor by assignment to Lion Capital
(Guernsey) II Limited).
As described in more detail in the
Company’s Current Report on Form 8-K, dated March 13, 2009, and filed with the
Securities and Exchange Commission on March 16, 2009 (the “March 8-K”), pursuant
to the Original Investment Agreement, Lion has the right to designate up to two
persons to the Company’s Board of Directors (the “Board”) and a nonvoting board
observer (or, if the Company increases the Board size to 12, Lion has the right
to designate up to three persons to the Board and no board observer), subject to
maintaining certain minimum ownership thresholds of shares of the Company’s
common stock. The Amendment extends the deadline for the Company to
cause Lion’s director nominees to be appointed or elected to the Board to not
later than the earlier of (1) the first annual meeting of stockholders of
the Company to occur following March 13, 2009 and (2) June 30,
2009. The Amendment further amends the Original Investment Agreement
to provide that if, as of June 30, 2009, Lion’s two director designees have not
been elected or appointed as directors of the Company, the Company shall take
all action necessary (including adopting an amendment to its bylaws) to increase
the size of the Board to 12 directors and appoint Lion’s three director
designees to the Board effective on or before June 30, 2009. Pursuant
to the Amendment, until the election or appointment of Lion’s director nominees
to the Board, each of Lion’s director nominees shall have the right to act as a
nonvoting board observer.
The foregoing description of the
Amendment does not purport to be complete and is qualified in its entirety by
reference to the Amendment, which is filed herewith as Exhibit 10.1 and
incorporated herein by this reference.
Item
1.02 Termination of a Material Definitive Agreement.
On
April 14, 2009, the Company, Dov Charney, the Company’s Chairman of the Board of
Directors, Chief Executive Officer and President (“Mr. Charney”), and Jonathan
J. Ledecky, Cullen Equities UK Limited, Jay H. Nussbaum, Kerry Kennedy, Robert
B. Hersov, Edward J. Mathias and Richard Y. Roberts (collectively, the “Endeavor
Founders”), entered into an agreement (the “Termination Agreement”) to
terminate, effective as of such date, the Voting Agreement dated as of December
12, 2007 (the “Voting Agreement”), by and among the Endeavor Founders, the
Company and Mr. Charney.
The Voting Agreement was entered into
in connection with the closing of the acquisition by the Company (formerly known
as Endeavor Acquisition Corp.) of American Apparel, Inc., a California
corporation, and its affiliated companies (the “Acquisition”). The
Endeavor Founders were the founders and pre-Acquisition stockholders of Endeavor
Acquisition Corp.
The Voting Agreement provided that the
Board would have nine members, comprised of four persons designated by Mr.
Charney (Mr. Charney, Adrian Kowalewski, Robert Greene and Allan Mayer), four
persons designated by the Endeavor Founders (Mark D. Klein, Mark Samson,
Mortimer Singer and Mark A. Thornton), and one person mutually designated by the
parties
(Keith
Miller). The Voting Agreement provided that the parties would vote their shares
of Company common stock in favor of such designees to serve as directors of the
Company through and including the election of directors at the annual meeting of
stockholders of the Company to be held in 2010.
The parties mutually agreed to
terminate the Voting Agreement in light of the transactions between the Company
and affiliates of Lion Capital LLP described in Item 1.01 of this Current Report
on Form 8-K and the March 8-K, and to provide the Company with greater
flexibility going forward to appoint directors with apparel industry and/or
other relevant expertise for the benefit of the Company and its
stockholders.
The foregoing description of the
Termination Agreement does not purport to be complete and is qualified in its
entirety by reference to the Termination Agreement, which is filed herewith as
Exhibit 10.2 and incorporated herein by this reference.
Item
8.01 Other Events.
The 2009 Annual Meeting of Stockholders
(the “2009 Annual Meeting”) of the Company has been tentatively scheduled for
June 17, 2009. Because the tentative date of the 2009 Annual Meeting
is more than 30 days before the anniversary date of the 2008 Annual Meeting of
Stockholders, in accordance with Rule 14a-5(f) under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), the Company is informing stockholders
of such change.
For a stockholder proposal to be
considered for inclusion in the Company’s proxy statement for the 2009 Annual
Meeting in accordance with Rule 14a-8 under the Exchange Act, the proposal must
be received by the Company’s Secretary at the address set forth below no later
than April 27, 2009. Any such proposal also must comply with Rule
14a-8 under the Exchange Act.
For a stockholder proposal that is not
intended to be included in the Company’s proxy statement for the 2009 Annual
Meeting under Rule 14a-8 under the Exchange Act, written notice of the proposal,
which notice must include the information required by the Company’s bylaws, must
be received by the Company’s Secretary at the address set forth below no later
than the tenth (10th) day
following the date on which notice of the date of the 2009 Annual Meeting is
mailed or public disclosure of the date of the 2009 Annual Meeting is made,
whichever first occurs, in accordance with the advance notice provisions of the
Company’s bylaws.
The address of the Company’s Corporate
Secretary is: American Apparel, Inc., Attn: Glenn A. Weinman,
Secretary, 747 Warehouse Street, Los Angeles, California 90021.
Item 9.01 Financial
Statements and Exhibits.
(d) Exhibits.
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10.1
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Amendment
and Agreement, dated as of April 10, 2009, by and between American
Apparel, Inc. and Lion/Hollywood L.L.C.
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10.2
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Agreement
to Terminate Voting Agreement, entered into as of April 14, 2009, by and
among American Apparel, Inc., Jonathan J. Ledecky, Cullen Equities UK
Limited, Jay H. Nussbaum, Kerry Kennedy, Robert B. Hersov, Edward J.
Mathias, Richard Y. Roberts and Dov
Charney.
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Signature
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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AMERICAN
APPAREL, INC. |
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Dated:
April 16, 2009
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By:
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/s/
Adrian Kowalewski |
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Name:
Adrian Kowalewski
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Title: Chief
Financial Officer
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EXHIBIT
INDEX
Exhibit
No.
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Description
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10.1
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Amendment
and Agreement, dated as of April 10, 2009, by and between American
Apparel, Inc. and Lion/Hollywood L.L.C.
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10.2
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Agreement
to Terminate Voting Agreement, entered into as of April 14, 2009, by and
among American Apparel, Inc., Jonathan J. Ledecky, Cullen Equities UK
Limited, Jay H. Nussbaum, Kerry Kennedy, Robert B. Hersov, Edward J.
Mathias, Richard Y. Roberts and Dov Charney.
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