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Exhibit 99
AMERICAN EAGLE OUTFITTERS, INC.
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement") is made and entered into
as of December 4, 1998, by and among AMERICAN EAGLE OUTFITTERS, INC., an Ohio
corporation (the "Company"), and Xxxxxx Xxxx, Trustee of the Guez Living Trust
U/D/T December 6, 1996 (the "Trust") and Xxxx Xxxx, holders of the Company's
common stock, without par value (collectively the "Shareholders").
RECITALS
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WHEREAS, in February of 1995, S.H.D. Investments, LLC, a California
limited liability company ("SHD"), purchased 2,250,000 shares (the "Shares") of
the Company's common stock from Xxx Xxxxxx, a former president of the Company,
after taking into account the two 3-for-2 stock splits of the Company's common
stock.
WHEREAS, the Shareholders are members of SHD.
WHEREAS, the Shares purchased form Xx. Xxxxxx by SHD were restricted
shares.
WHEREAS, in December 1998, SHD redeemed a portion of the interests in
SHD held by the Shareholders and as a result distributed 250,000 Shares to Xxxx
Xxxx and 250,000 Shares to the Trust (the "Registrable Securities").
WHEREAS, the Company has agreed to register the Registrable Securities
in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions contained herein, the parties
hereto hereby agree as follows:
AGREEMENT
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Section 1. CERTAIN DEFINITIONS. As used in this Agreement, the
following terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Registrable Securities" means the Shares owned by Xxxx Xxxx and the
Trust as a result of the distribution by SHD in December 1998.
The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing with the Commission a registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement.
"Registration Expenses" shall mean all reasonable expenses, except
Selling Expenses as defined below, incurred by the Company in complying with a
registration under Sections 5 or 6 hereof, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel and accountants for the Company, blue sky fees
and expenses, and the expense of any special audits incident to or required by
any such registration.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Shareholders and all fees and disbursements of counsel for any Shareholder.
Section 2. SHELF REGISTRATION. The Company hereby agrees to effect a
registration under the Securities Act on Form S-3 for a public offering of the
Registrable Securities. At the expense of the Shareholders, the Company will:
(a) Prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for six (6) months, and prepare and
file with the Commission such amendments to such registration statement and
supplements to the prospectus contained therein as may be necessary to keep such
registration statement effective for six (6) months;
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(b) Furnish to the Shareholders such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such other
documents as such Shareholders may reasonably request in order to facilitate the
public offering of such securities;
(c) Use its best efforts to register or qualify the securities covered
by such registration statement under such state securities or blue sky laws of
such jurisdictions as such Shareholders may reasonably request within ten (10)
days prior to the original filing of such registration statement, except that
the Company shall not for any purpose be required to execute a general consent
to service of process or to qualify to do business as a foreign corporation in
any jurisdiction where it is not so qualified;
(d) Notify the Shareholders promptly after it shall receive notice
thereof, of the time when such registration statement has become effective or a
supplement to any prospectus forming a part of such registration statement has
been filed;
(e) Notify the Shareholders promptly of any request by the Commission
to amend or supplement such registration statement or prospectus or for
additional information;
(f) Prepare and file with the Commission promptly upon the request of
any such Shareholders, any amendments or supplements to such registration
statement or prospectus which, in the reasonable opinion of counsel for such
Shareholders, is required under the Securities Act or the rules and regulations
thereunder in connection with the distribution of the Registrable Securities by
such Shareholders;
(g) Prepare and promptly file with the Commission, and promptly notify
such Shareholders of the filing of, such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event has
occurred as the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading
in light of the circumstances in which they were made; and
(h) Advise such Shareholders promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
Section 3. RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Agreement at any time in its sole discretion whether prior to or after the
effectiveness of such registration. Any such termination or withdrawal will not
relieve the Shareholders of their obligation to pay expenses and provide
indemnification hereunder.
Section 4. EXPENSES OF REGISTRATION. All Registration Expenses incurred
in connection with all registrations pursuant to Section 2 shall be borne by the
Shareholders and shall be paid by the Shareholders to the Company in cash in
advance on demand, subject to verification of actual expenses by the Company for
advance payments. All Selling Expenses relating to securities registered on
behalf of the Shareholders shall be borne by the Shareholders.
Section 5. INFORMATION BY SHAREHOLDERS. The Shareholders shall furnish
the Company such information regarding such Shareholders, the Registrable
Securities held by them and the distribution proposed by such Shareholders as
the Company may request in writing and as shall be required in connection with
any registration referred to in this Agreement.
Section 6. INDEMNIFICATION.
(a) The Shareholders will jointly and severally indemnify the Company,
each of its directors and officers, and each person who controls the Company
against all claims, losses, damages and liabilities (or actions in respect
thereof), arising out of or based on any action or omission by the Company
pursuant to or as a result of this Agreement, including without limitation, any
mistake or negligent act on the part of the Company or its agents, and will
reimburse the Company, such directors, officers, persons, or control persons for
any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action.
(b) If the Company becomes entitled to indemnification under this
Section 6, it shall give notice to the Shareholders promptly after it has actual
knowledge of any claim as to which indemnity may be sought, and shall permit the
Shareholders to assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Shareholders, who shall conduct the
defense of such claim or litigation, shall be approved by the Company (whose
approval shall not unreasonably be withheld), and the Company may participate in
such defense at its own expense, and provided further that the failure of the
Company to give notice as provided herein shall not relieve the Shareholders of
their obligations under this Agreement unless the failure to give such notice is
materially prejudicial to the Shareholder's ability to defend such action and
provided further, that the Shareholders shall not
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assume the defense for matters as to which there is a conflict of interest or
separate and different defenses. The Shareholders, in the defense of any such
claim or litigation, shall not, except with the consent of the Company, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to the
Company of a release from all liability in respect to such claim or litigation.
Section 7. NON-ASSIGNABILITY OF AGREEMENT. The rights granted by this
Agreement to the Shareholders may not be transferred except by will or the laws
of descent or distribution.
Section 8. EXECUTION IN COUNTERPARTS. For the convenience of the
parties, this Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Section 9. NOTICES. All notices that are required or may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and delivered by hand or national
overnight courier service, transmitted by telecopy or mailed by registered or
certified mail, postage prepaid, and shall be deemed given upon receipt, as
follows:
If to the Company to:
American Eagle Outfitters
000 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
(000) 000-0000:
Attention: Xxx X. Xxxxxxxxxxxxx, Chairman of the Board
With a copy to:
Xxxx Xxxxxx, Xx.
Porter, Wright, Xxxxxx & Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
If to the Shareholders to:
The address appearing on the books and records of
the Company or its transfer agent as the address of
the Shareholders
With a copy to:
Xxxxxxx X. Xxxxx, Esq.
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
or such other address or addresses as any party hereto shall have designated by
notice in writing to the other parties hereto.
Section 10. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with he laws of the State of Ohio, without regard to its
conflict of laws principles.
Section 11. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes any and all prior agreements and understandings, oral and written,
with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written.
AMERICAN EAGLE OUTFITTERS, INC. SHAREHOLDERS
By: /s/Xxx X. Xxxxxxxxxxxxx /s/Xxxx Xxxx
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Xxx X. Xxxxxxxxxxxxx, Chairman Xxxx Xxxx
The Guez Family Trust
U/D/T December 6, 1996
By:/s/Xxxxxx Xxxx
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Xxxxxx Xxxx, Co-Trustee
