Exhibit 4.12

 

AMENDMENT TO NOTE PURCHASE AGREEMENT

 

This Amendment to Note Purchase Agreement, dated as of April 14, 2016 (this “Amendment”), is entered into by and among Luxottica U.S. Holdings Corp. (the “Company”), Luxottica Group S.p.A. (the “Parent”) and the Holders (defined herein) and amends the Note Purchase Agreement, dated January 29, 2010 (the “Note Purchase Agreement”). Capitalized terms used but not defined herein shall have the respective meanings set forth in the Note Purchase Agreement.

 

RECITALS

 

A.                                    WHEREAS, pursuant to the Note Purchase Agreement, the Company issued its U.S.$50,000,000 5.19% Series D Senior Guaranteed Notes due 2017 (the “Series D Notes”), U.S.$50,000,000 5.75% Series E Senior Guaranteed Notes due 2020 (the “Series E Notes”) and U.S.$75,000,000 5.39% Series F Senior Guaranteed Notes due 2019 (the “Series F Notes” and, together with the Series D Notes and the Series E Notes, the “Notes”);

 

B.                                    WHEREAS, the Parent is the guarantor of the Notes;

 

C.                                    WHEREAS, pursuant to the Note Purchase Agreement, the Parent is required to deliver to the holders of the Notes (collectively, the “Holders”) on a quarterly basis unaudited consolidated financial statements and compliance certificates;

 

D.                                    WHEREAS, the Parent has determined that it will no longer publicly disclose its first and third quarter unaudited financial statements (the “Interim Financial Statements”) in accordance with applicable Italian law;

 

E.                                     WHEREAS, the Company proposes to align the financial statement delivery obligations under the Note Purchase Agreement and the timing of its obligations to determine and report its compliance with certain provisions of the Note Purchase Agreement with the Parent’s revised financial statement disclosure schedule; and

 

F.                                      WHEREAS, pursuant to Section 18 of the Note Purchase Agreement, the proposed amendments to the Note Purchase Agreement require the written consent of the Company, the Parent and the Required Holders.

 

NOW, THEREFORE, in consideration of the premises and the agreements set forth herein, the Company, the Parent and the Holders agree as follows:

 

1.                                      Amendment of the Note Purchase Agreement.  In accordance with Section 18 of the Note Purchase Agreement, each of the following provisions of the Note Purchase Agreement is hereby amended and restated in its entirety as follows:

 

1.1                               Section 7.1(a) is hereby amended and restated in its entirety to read as follows:

 

“(a) Semi-Annual Statements of the Parent — within 120 days after the end of the second quarter of each fiscal year of the Parent, duplicate copies of

 











 

(i) an unaudited consolidated balance sheet of the Parent and its Subsidiaries as at the end of such period, and

 

(ii) unaudited consolidated statements of income, shareholders’ equity and cash flows of the Parent and its Subsidiaries for the six-month period ending on such date,

 

setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to such financial statements generally, and certified by a Senior Financial Officer as presenting fairly, in all material respects, the consolidated financial position of the Parent and its Subsidiaries being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments, provided that delivery within the time period specified above of copies of the Company’s Current Report on Form 6-K containing such financial information and furnished to the SEC shall be deemed to satisfy the requirements of this Section 7.1(a), provided further that, subject to Section 7.1(i) below, the Parent shall be deemed to have made such delivery of such semi-annual statements if it shall have timely made such semi-annual statements available on its home page on the worldwide web and shall have given each holder of Notes prior notice of such availability by email on each such occasion on which such statements are made available at the email address set forth for such holder on Schedule A or such other email address as such holder shall have provided in writing to the Parent or the Company for such purpose (such availability and such prior notice being referred to as “Electronic Delivery”); provided that each holder of the Notes may at any time request the Parent to deliver to such holder a hard copy of any information, which is being made available by Electronic Delivery pursuant to this Section 7.1(a), and the Parent shall comply with any such request within 10 Business Days;”

 

1.2                               Section 7.1 is hereby amended by adding a new clause (j) at the end thereof as follows:

 

“(j) Equivalent Delivery of Interim Financial Statements — If, on or after April 14, 2016, the Parent shall provide interim unaudited consolidated financial statements for the first or third quarter of any fiscal year to any creditor (or any Affiliate of any creditor) under any credit agreement or note purchase agreement, then a duplicate copy of such interim unaudited consolidated financial statements, together with duplicate copies of any officer’s certificates and any other documents delivered in connection therewith (but only to the extent that the information set forth therein would have been relevant in determining the Parent’s compliance with Sections 10.4 through 10.7, inclusive, of this Agreement prior to April 14, 2016), shall be provided to each holder at substantially the same time as they are delivered to such creditor (or any Affiliate of such creditor).”

 

1.3                               Section 7.2 is hereby amended and restated in its entirety to read as follows:

 

“Each set of financial statements delivered to a holder of Notes pursuant to Section 7.1(a), Section 7.1(b) or, if applicable, Section 7.1(j) hereof shall be accompanied by a certificate of a Senior Financial Officer setting forth:

 

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(a) Covenant Compliance — the information (including detailed calculations) required in order to establish whether the Parent was in compliance with the requirements of Sections 10.4 through 10.7 hereof, inclusive, during the period covered by the statements then being furnished (including with respect to each such Section, where applicable, the calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Sections, and the calculation of the amount, ratio or percentage then in existence); and

 

(b) Event of Default — a statement that such officer has reviewed the relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Parent and its Subsidiaries from the beginning of the period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default or, if any such condition or event existed or exists (including, without limitation, any such event or condition resulting from the failure of the Parent or any Subsidiary to comply with any Environmental Law), specifying the nature and period of existence thereof and what action the Parent shall have taken or proposes to take with respect thereto.”

 

1.4                               Section 10 is hereby amended by adding the following parenthetical immediately before the colon at the end of the introductory phrase thereof:

 

“(it being understood that if the reporting requirements of Section 7.1(j) hereof apply, the Parent shall be in compliance with the requirements of Section 10.4 through 10.7, inclusive, of this Agreement as in effect immediately prior to April 14, 2016 during the quarterly period covered by the financial statements then being furnished)”

 

1.5                               Section 10.4(b)(xii) is hereby amended and restated in its entirety to read as follows:

 

“(xii) any Lien securing Indebtedness or other obligations, so long as such Indebtedness or other obligations (when aggregated with all other Priority Debt outstanding as at the time of granting such Lien or entering into such transaction, as the case may be) does not exceed 20% of Consolidated Shareholders’ Equity as of the last day of the most recent fiscal period for which Consolidated Financial Statements or Consolidated Semi-Annual Financial Statements (as the case may be) have been provided to holders of the Notes immediately preceding the date on which any such Lien is incurred; provided, however, that, notwithstanding the foregoing, the Parent and the Company will not, and will not permit any Subsidiary to, grant or allow to remain in force any Liens permitted by this clause (xii) to secure Indebtedness outstanding under or pursuant to any Banking Facility or Facilities unless and until the Notes shall be concurrently secured, equally and ratably with such Indebtedness, pursuant to documentation in form and substance satisfactory to the Required Holders.”

 

1.6                               Section 10.7 is hereby amended and restated in its entirety to read as follows:

 

“The Parent shall ensure that:

 

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(a) the ratio of EBITDA to Net Financial Charges, each as determined (a) at any time other than during a Pro Forma Relevant Period, from the Consolidated Financial Statements or the Consolidated Semi-Annual Financial Statements (as the case may be) of the Group in accordance with GAAP and compliance certificates required to be delivered under this Agreement, or (b) during a Pro Forma Relevant Period, from the Consolidated Pro Forma Financial Statements or the Consolidated Semi-Annual Pro Forma Financial Statements (as the case may be) of the Group in accordance with GAAP, in each case will not be less than 5.0 to 1 in respect of any Relevant Period or Pro Forma Relevant Period, as the case may be; and

 

(b) the ratio of Net Debt (as of any Relevant Date) to EBITDA (in respect of the Relevant Period or Pro Forma Relevant Period, as the case may be, ending on that Relevant Date), each as determined (a) at any time other than during a Pro Forma Relevant Period, from the Consolidated Financial Statements or the Consolidated Semi-Annual Financial Statements (as the case may be) of the Group in accordance with GAAP and compliance certificates required to be delivered under this Agreement, or (b) during a Pro Forma Relevant Period, from the Consolidated Pro Forma Financial Statements or the Consolidated Semi-Annual Pro Forma Financial Statements (as the case may be) of the Group in accordance with GAAP, will not be greater than 3.5 to 1.

 

In the event that the interest coverage covenant in the Banking Facility or Facilities comparable to Section 10.7(a) above is at any time amended or modified by the parties thereto so as to reduce the required ratio therein of EBITDA to Net Financial Charges below 5.0 to 1 in respect of any Relevant Period or Pro Forma Relevant Period, then the parties hereto agree, promptly following the written request of the Parent, to amend Section 10.7(a) hereof in order to reduce the required ratio of EBITDA to Net Financial Charges hereunder to the same level that is required under such comparable interest coverage covenant in the Banking Facility or Facilities; provided that in no event shall the ratio of EBITDA to Net Financial Charges set forth in Section 10.7(a) hereof be required by operation of this clause to be reduced below 4.0 to 1 in respect of any Relevant Period or Pro Forma Relevant Period.”

 

1.7                               The defined term “Consolidated Quarterly Financial Statements” set forth in Schedule B is hereby deleted in its entirety and replaced with the defined term “Consolidated Semi-Annual Financial Statements” as follows:

 

““Consolidated Semi-Annual Financial Statements” means, with respect to the Group, the latest semi-annual financial statements of the Group in respect of the first six months of each financial year.”

 

1.8                               The defined term “Consolidated Quarterly Pro Forma Financial Statements” set forth in Schedule B is hereby deleted in its entirety and replaced with the defined term “Consolidated Semi-Annual Pro Forma Financial Statements” as follows:

 

““Consolidated Semi-Annual Pro Forma Financial Statements” means, during any Pro Forma Relevant Period with respect to the Group, the latest semi-annual financial statements of the Group in respect of the first six months of each financial year,

 

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including, on a pro forma basis, the relevant results of any Target; provided, however, that the pro forma inclusion of the relevant results of any Target shall not give pro forma effect to any actual or anticipated synergies that may arise as a result of the acquisition of such Target.”

 

1.9                               The defined term “Consolidated Shareholders’ Equity” set forth in Schedule B is hereby amended and restated in its entirety to read as follows:

 

““Consolidated Shareholders’ Equity” means, as of any date, the consolidated shareholders’ equity shown on the Consolidated Financial Statements or Consolidated Semi-Annual Financial Statements, as the case may be, most recently delivered to the holders of the Notes.”

 

1.10                        The defined term “Material Subsidiary” set forth in Schedule B is hereby amended and restated in its entirety to read as follows:

 

““Material Subsidiary” means a Subsidiary of the Parent the profits before interest and tax or net assets of which as at the date as at which its latest annual audited or semi-annual consolidated financial statements were prepared or, as the case may be, for the financial period to which those financial statements relate account for 5% or more of the consolidated profits before interest and tax or net assets (respectively) of the Group (all as calculated by reference to the latest Consolidated Financial Statements or Consolidated Semi-Annual Financial Statements (as the case may be)).”

 

1.11                        The defined term “Relevant Date” set forth in Schedule B is hereby amended and restated in its entirety to read as follows:

 

““Relevant Date” means June 30 or December 31 in any year.”

 

1.12                        The defined term “Target” set forth in Schedule B is hereby amended and restated in its entirety to read as follows:

 

““Target” means any company acquired after January 1, 2010 by a member of the Group, and the Subsidiaries of such company, for which the Parent elects to provide, or would otherwise be required to provide pursuant to Regulation S-X, pro forma financial results in the Consolidated Financial Statements and Consolidated Semi-Annual Financial Statements (as the case may be).”

 

1.13                        The defined term “Total Assets” set forth in Schedule B is hereby amended and restated in its entirety to read as follows:

 

““Total Assets” means, as of the date of any determination, the consolidated total assets of the Group shown on the Consolidated Financial Statements or Consolidated Semi-Annual Financial Statements (as the case may be) most recently delivered to the holders of the Notes.”

 

2.                                      Each of the Company, the Parent and the Holders hereby agrees that, except as specifically set forth in this Amendment, all other terms and conditions of the Note Purchase

 

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Agreement shall remain in full force and effect.  In the case of any inconsistency between the provisions of the Note Purchase Agreement and this Amendment, the provisions of this Amendment shall govern and control.

 

3.                                      Representations of the Company and the Parent.

 

3.1                               No event has occurred and no condition exists that, upon the execution and delivery of this Amendment and the effectiveness of the amendments set forth in Section 1 hereof, would constitute a Default or an Event of Default.

 

3.2                               Each of the execution and delivery of this Amendment by the Company and the performance by the Company of all of its obligations hereunder is (i) within the corporate powers of the Company and (ii) will not conflict with, result in any breach in any of the provisions of, constitute a default under or result in the creation of any Lien upon any property of the Company or any of its Subsidiaries under the provisions of any charter instrument, bylaw or other material agreement or instrument to which the Company or any Subsidiary is a party or by which it or any of its property may be bound.

 

3.3                               This Amendment has been duly authorized by all necessary action on the part of the Company and has been executed and delivered by one or more duly authorized officers of the Company.

 

3.4                               (A)  This Amendment constitutes a legal, valid and binding obligation of the Company; and

 

(B)  After giving effect to the amendments set forth in Section 1 hereof, (i) the Note Purchase Agreement will constitute a legal, valid and binding obligation of the Company, (ii) the Parent Guarantee will constitute a legal, valid and binding obligation of the Parent and (iii) the Subsidiary Guarantee will constitute a legal, valid and binding obligation of the Initial Subsidiary Guarantor,

 

in each case, enforceable against such party in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and general principles of equity.

 

3.5                               The execution and delivery by the Company of this Amendment and the performance by the Company of its obligations under this Amendment and, after giving effect to the amendments set forth in Section 1 hereof, the performance by the Company of its obligations under the Note Purchase Agreement, the performance by the Parent of its obligations under the Parent Guarantee and the performance by the Initial Subsidiary Guarantor of its obligations under the Subsidiary Guarantee, in each case, will not (a) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to the Company, the Parent or the Initial Subsidiary Guarantor, as the case may be, or (b) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company, the Parent or the Initial Subsidiary Guarantor, as the case may be.

 

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3.6                               No consent, approval or authorization of, or filing, registration or qualification with, any Governmental Authority is a condition to the execution and delivery of this Amendment.

 

3.7                               No member of the Group has paid (or has promised to pay) any amendment fee or any other direct or indirect compensation to any party under any note purchase agreement or credit facility (or any Affiliate of any such party) in connection with amendments made under any such document that are equivalent to those set forth in Section 1 hereof.

 

4.                                      Each of the parties hereto consents to the foregoing and agrees to be bound by the terms of the Note Purchase Agreement, as amended pursuant to this Amendment.

 

5.                                      This Amendment shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than the State of New York.

 

6.                                      This Amendment may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.

 

7.                                      The division of this Amendment into Sections, and the insertion of headings, are for convenience of reference only and shall not affect the construction or interpretation of this Amendment.  The terms “this Amendment,” “herein,” “hereunder” and similar expressions refer to this Amendment and not to any particular Section or other portion hereof and include any agreements supplemental hereto.

 

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed as of the date first set forth above.

 

	
 
    	
LUXOTTICA   U.S. HOLDINGS CORP.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Michael A. Boxer
    
	
 
    	
Name:
    	
Michael A. Boxer
    
	
 
    	
Title:
    	
General Counsel
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
LUXOTTICA U.S. HOLDINGS CORP.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Vito Giannola
    
	
 
    	
Name:
    	
Vito Giannola
    
	
 
    	
Title:
    	
Vice President and Treasurer
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
LUXOTTICA GROUP S.p.A.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Leonardo Del Vecchio
    
	
 
    	
Name:
    	
Leonardo Del Vecchio
    
	
 
    	
Title:
    	
Executive Chairman (Presidente   Esecutivo)
    


 

[Execution of Ratification Follows]

 











 

RATIFICATION

 

Each of the Parent and the Initial Subsidiary Guarantor hereby acknowledges and reaffirms in all respects all of its respective obligations under the Parent Guarantee or the Subsidiary Guarantee, as applicable, and confirms that the Parent Guarantee or the Subsidiary Guarantee, as applicable, shall continue in full force and effect after giving effect to the amendments set forth in Section 1 and the other provisions of the foregoing Amendment.  Capitalized terms used in this Ratification shall have the respective meanings ascribed thereto in the foregoing Amendment.

 

	
 
    	
LUXOTTICA GROUP S.p.A.
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Leonardo Del Vecchio
    
	
 
    	
Name:
    	
Leonardo Del Vecchio
    
	
 
    	
Title:
    	
Executive Chairman (Presidente   Esecutivo)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
LUXOTTICA S.r.l.
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Luigi Francavilla
    
	
 
    	
Name:
    	
Luigi Francavilla
    
	
 
    	
Title:
    	
Legal Representative
    


 

[Execution by the Holders Follows]

 









 

	
 
    	
THE   PRUDENTIAL INSURANCE COMPANY OF AMERICA
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Joshua Shipley 
    	
 
    
	
 
    	
Name:
    	
Joshua Shipley
    
	
 
    	
Title:
    	
Vice President
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
PRUDENTIAL   RETIREMENT INSURANCE AND ANNUITY COMPANY
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
PGIM, Inc. (as Investment Manager)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Joshua Shipley
    	
 
    
	
 
    	
 
    	
Name:
    	
Joshua Shipley
    
	
 
    	
 
    	
Title:
    	
Vice President
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
PRUCO   LIFE INSURANCE COMPANY
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Joshua Shipley
    	
 
    
	
 
    	
Name:
    	
Joshua Shipley
    
	
 
    	
Title: 
    	
Assistant Vice President
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
PRUCO   LIFE INSURANCE COMPANY OF NEW JERSEY
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Joshua Shipley
    	
 
    
	
 
    	
Name:
    	
Joshua Shipley
    
	
 
    	
Title:
    	
Assistant Vice President
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
PRUDENTIAL   ANNUITIES LIFE ASSURANCE CORPORATION
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
PGIM, Inc. (as Investment Manager)
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Joshua Shipley
    	
 
    
	
 
    	
 
    	
Name:
    	
Joshua Shipley
    
	
 
    	
 
    	
Title:
    	
Vice President
    
							


 











 

	
 
    	
THE PRUDENTIAL LIFE INSURANCE   COMPANY, LTD.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:
    	
Prudential Investment   Management Japan Co., Ltd. (as Investment Manager)
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
PGIM, Inc. (as   Sub-Adviser)
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
By:
    	
/s/ Joshua Shipley
    	
 
    
	
 
    	
 
    	
 
    	
Name:
    	
Joshua Shipley
    
	
 
    	
 
    	
 
    	
Title:
    	
Vice President
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
THE GIBRALTAR LIFE INSURANCE   CO., LTD.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:
    	
Prudential Investment   Management Japan Co., Ltd. (as Investment Manager)
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
PGIM, Inc. (as   Sub-Adviser)
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
By:
    	
/s/ Joshua Shipley
    	
 
    
	
 
    	
 
    	
 
    	
Name:
    	
Joshua Shipley
    
	
 
    	
 
    	
 
    	
Title: 
    	
Vice President
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
PRUDENTIAL ARIZONA REINSURANCE   CAPTIVE COMPANY
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:
    	
PGIM, Inc. (as   Investment Manager)
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Joshua Shipley
    	
 
    
	
 
    	
 
    	
Name:
    	
Joshua Shipley
    
	
 
    	
 
    	
Title:
    	
Vice President