Exhibit 10.5
CORPORATE AGREEMENT
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THIS CORPORATE AGREEMENT ("Agreement") is entered into as of October 1,
1996 by and between Abercrombie & Fitch Co., a Delaware corporation
("Abercrombie & Fitch"), and The Limited, Inc., a Delaware corporation ("The
Limited").
RECITALS
WHEREAS, The Limited beneficially owns all of the issued and outstanding
Abercrombie & Fitch Class B Common Stock, par value $0.01 per share ("Class B
Common Stock"), and Abercrombie & Fitch is a member of The Limited's "affiliated
group" of corporations ("Limited Group") for federal income tax purposes;
WHEREAS, Abercrombie & Fitch issued shares of Class A Common Stock, $0.01 par
value per share ("Class A Common Stock"), to the public in an offering (the
"Initial Public Offering") registered under the Securities Act of 1933, as
amended; and
WHEREAS, the parties desire to enter into this Agreement to set forth their
agreement regarding (i) The Limited's rights to purchase additional shares of
Class B Common Stock upon any issuance of certain classes of capital stock of
Abercrombie & Fitch to any person to permit The Limited to maintain its then
current percentage ownership interest in Abercrombie & Fitch, (ii) The Limited's
rights to purchase shares of non-voting classes of capital stock of Abercrombie
& Fitch to permit The Limited to own 80 percent of each class of such stock
outstanding, (iii) certain registration rights with respect to Class B Common
Stock (and any other securities issued in respect thereof or in exchange
therefor) and (iv) certain representations, warranties, covenants and agreements
applicable to Abercrombie & Fitch so long as it is a subsidiary of The Limited.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, The Limited and Abercrombie &
Fitch, for themselves, their successors and assigns, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. As used in this Agreement, the following terms will have
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the following meanings, applicable both to the singular and the plural forms of
the terms described:
"Abercrombie & Fitch" has the meaning ascribed thereto in the preamble hereto.
"Abercrombie & Fitch Entities" means Abercrombie & Fitch and its Subsidiaries
and "Abercrombie & Fitch Entity" shall mean any of the Abercrombie & Fitch
Entities.
"Affiliate" means, with respect to any Person, any Person controlling,
controlled by or under common control with such Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power to vote a majority of
the securities having voting power for the election of directors (or other
Persons acting in similar capacities) of such Person or otherwise to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" has the meaning ascribed thereto in the preamble hereto, as such
agreement may be amended and supplemented from time to time in accordance with
its terms.
"Applicable Stock" means at any time the (i) shares of Class B Common Stock
owned by the Limited Entities that were owned on the date hereof, plus (ii)
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shares of Class B Common Stock owned by the Limited Entities that were purchased
by the Limited Entities pursuant to Article II of this Agreement, plus (iii)
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shares of Common Stock that were issued to the Limited Entities in respect of
shares described in either clause (i) or clause (ii) in any reclassification,
share combination, share subdivision, share dividend, share exchange, merger,
consolidation or similar transaction or event.
"Class A Common Stock" has the meaning ascribed thereto in the recitals to
this Agreement.
"Class B Common Stock" has the meaning ascribed thereto in the recitals to
this Agreement.
"Class B Common Stock Option" has the meaning ascribed thereto in Section
2.1(a).
"Class B Common Stock Option Notice" has the meaning ascribed thereto in
Section 2.2.
"Common Stock" means the Class B Common Stock, the Class A Common Stock, any
other class of Abercrombie & Fitch capital stock having the right to vote
generally for the election of directors and, for so long as Abercrombie & Fitch
continues to be a subsidiary corporation includible in a consolidated federal
income tax return of the Limited Group, any other security of Abercrombie &
Fitch treated as stock for purposes of Section 1504 of the Internal Revenue Code
of 1986, as amended.
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"Company Securities" has the meaning ascribed thereto in Section 3.2(b).
"Disadvantageous Condition" has the meaning ascribed thereto in Section
3.1(a).
"Holder" means The Limited and any Transferee.
"Holder Securities" has the meaning ascribed thereto in Section 3.2(b).
"Initial Public Offering" has the meaning ascribed thereto in the recitals to
this Agreement.
"Initial Public Offering Date" means the date of completion of the initial
sale of Class A Common Stock in the Initial Public Offering.
"Issuance Event" has the meaning ascribed thereto in Section 2.2.
"Issuance Event Date" has the meaning ascribed thereto in Section 2.2.
"Limited Entities" means The Limited and Subsidiaries of The Limited and
"Limited Entity" shall mean any of the Limited Entities.
"Limited Group" has the meaning ascribed thereto in the recitals to this
Agreement.
"Limited Ownership Reduction" means any decrease at any time in the Ownership
Percentage to less than 50%.
"Limited Transferee" has the meaning ascribed thereto in Section 3.9.
"Market Price" of any shares of Class A Common Stock on any date means (i) the
average of the last sale price of such shares on each of the five trading days
immediately preceding such date on the Nasdaq National Market or, if such shares
are not quoted thereon, on the principal national securities exchange or
automated interdealer quotation system on which such shares are traded or (ii)
if such sale prices are unavailable or such shares are not so traded, the value
of such shares on such date determined in accordance with agreed-upon procedures
reasonably satisfactory to Abercrombie & Fitch and The Limited.
"Nonvoting Stock" means any class of Abercrombie & Fitch capital stock not
having the right to vote generally for the election of directors.
"Nonvoting Stock Option" has the meaning ascribed thereto in Section 2.1(b).
"Nonvoting Stock Option Notice" has the meaning ascribed thereto in Section
2.2.
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"Other Holders" has the meaning ascribed thereto in Section 3.2(c).
"Other Securities" has the meaning ascribed thereto in Section 3.2.
"Ownership Percentage" means, at any time, the fraction, expressed as a
percentage and rounded to the next highest thousandth of a percent, whose
numerator is the aggregate Value of the Applicable Stock and whose denominator
is the sum of the aggregate Value of the then outstanding shares of Common Stock
of Abercrombie & Fitch plus Repurchased Shares; provided, however, that any
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shares of Common Stock issued by Abercrombie & Fitch in violation of its
obligations under Article II of this Agreement shall not be deemed outstanding
for the purpose of determining the Ownership Percentage. For purposes of this
definition and the definition of Repurchased Shares, "Value" means, with respect
to any share of stock, the value of such share determined by The Limited under
principles applicable for purposes of Section 1504 of the Internal Revenue Code
of 1986, as amended.
"Person" means any individual, partnership, limited liability company, joint
venture, corporation, trust, unincorporated organization, government (and any
department or agency thereof) or other entity.
"Registrable Securities" means Class B Common Stock and any stock or other
securities into which or for which such Class B Common Stock may hereafter be
changed, converted or exchanged and any other shares or securities issued to
Holders of such Class B Common Stock (or such shares or other securities into
which or for which such shares are so changed, converted or exchanged) upon any
reclassification, share combination, share subdivision, share dividend, share
exchange, merger, consolidation or similar transaction or event or pursuant to
the Nonvoting Stock Option. As to any particular Registrable Securities, such
Registrable Securities shall cease to be Registrable Securities when (i) a
registration statement with respect to the sale by the Holder thereof shall have
been declared effective under the Securities Act and such securities shall have
been disposed of in accordance with such registration statement, (ii) they shall
have been distributed to the public in accordance with Rule 144, (iii) they
shall have been otherwise transferred, new certificates for them not bearing a
legend restricting further transfer shall have been delivered by Abercrombie &
Fitch and subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any state securities or blue
sky law then in effect or (iv) they shall have ceased to be outstanding.
"Registration Expenses" means any and all expenses incident to performance of
or compliance with any registration of securities pursuant to Article III,
including, without limitation, (i) the fees, disbursements and expenses of
Abercrombie & Fitch's counsel and accountants and the reasonable fees and
expenses of counsel selected by the Holders in accordance with this Agreement in
connection with the registration of the securities to be disposed of; (ii) all
expenses, including filing fees, in connection with the preparation, printing
and filing of the registration statement, any preliminary prospectus or final
prospectus, any
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other offering document and amendments and supplements thereto and the mailing
and delivering of copies thereof to any underwriters and dealers; (iii) the cost
of printing or producing any agreements among underwriters, underwriting
agreements, and blue sky or legal investment memoranda, any selling agreements
and any other documents in connection with the offering, sale or delivery of the
securities to be disposed of; (iv) all expenses in connection with the
qualification of the securities to be disposed of for offering and sale under
state securities laws, including the fees and disbursements of counsel for the
underwriters or the Holders of securities in connection with such qualification
and in connection with any blue sky and legal investment surveys; (v) the filing
fees incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the securities to be
disposed of; (vi) transfer agents' and registrars' fees and expenses and the
fees and expenses of any other agent or trustee appointed in connection with
such offering; (vii) all security engraving and security printing expenses;
(viii) all fees and expenses payable in connection with the listing of the
securities on any securities exchange or automated interdealer quotation system
or the rating of such securities; (ix) any other fees and disbursements of
underwriters customarily paid by the issuers of securities, but excluding
underwriting discounts and commissions and transfer taxes, if any; and (x) other
reasonable out-of-pocket expenses of Holders other than legal fees and expenses
referred to in clause (i) and (iv) above.
"Repurchased Shares" mean the aggregate Value of shares of Abercrombie &
Fitch's Common Stock that are, from and after the date hereof, repurchased by
Abercrombie & Fitch from its shareholders, less the aggregate Value of shares of
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Common Stock (up to the aggregate Value so repurchased) that are re-issued from
and after the date hereof upon the exercise of stock options or otherwise.
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 415 Offering" means an offering on a delayed or continuous basis
pursuant to Rule 415 (or any successor rule to similar effect) promulgated under
the Securities Act.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute.
"Selling Holder" has the meaning ascribed thereto in Section 3.5(e).
"Subsidiary" means, as to any Person, any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting capital stock or other voting ownership interests is owned or
controlled directly or indirectly by such Person or by one or more of the
Subsidiaries of such Person or by a combination thereof.
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"The Limited" has the meaning ascribed thereto in the preamble hereto.
"Transferee" has the meaning ascribed thereto in Section 3.9.
1.2. Internal References. Unless the context indicates otherwise, references
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to Articles, Sections and paragraphs shall refer to the corresponding articles,
sections and paragraphs in this Agreement, and references to the parties shall
mean the parties to this Agreement.
ARTICLE II
OPTIONS
2.1. Options. (a) Abercrombie & Fitch hereby grants to The Limited, on the
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terms and conditions set forth herein, a continuing right (the "Class B Common
Stock Option") to purchase from Abercrombie & Fitch, at the times set forth
herein, such number of shares of Class B Common Stock as is necessary to allow
the Limited Entities to maintain the then-current Ownership Percentage. The
Class B Common Stock Option shall be assignable, in whole or in part and from
time to time, by The Limited to any Limited Entity. The exercise price for the
shares of Class B Common Stock purchased pursuant to the Class B Common Stock
Option shall be the Market Price of the Class A Common Stock as of the date of
first delivery of notice of exercise of the Class B Common Stock Option by The
Limited (or its permitted assignee hereunder) to Abercrombie & Fitch.
(b) Abercrombie & Fitch hereby grants to The Limited, on the terms and
conditions set forth herein, a continuing right (the "Nonvoting Stock Option"
and, together with the Class B Common Stock Option, the "Options") to purchase
from Abercrombie & Fitch, at the times set forth herein, such number of shares
of Nonvoting Stock as is necessary to allow the Limited Entities to own 80
percent of each class of outstanding Nonvoting Stock. The Nonvoting Stock Option
shall be assignable, in whole or in part and from time to time, by The Limited
to any Limited Entity. The exercise price for the shares of Nonvoting Stock
purchased pursuant to the Nonvoting Stock Option shall be the price at which
such Nonvoting Stock is then being sold to third parties or, if no Nonvoting
Stock is being sold, the fair market value thereof as determined in good faith
by the Board of Directors of Abercrombie & Fitch.
2.2. Notice. At least 20 business days prior to the issuance of any shares
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of Common Stock or the first date on which any event could occur that, in the
absence of a full or partial exercise of the Class B Common Stock Option, would
result in a reduction in the Ownership Percentage, Abercrombie & Fitch will
notify The Limited in writing (a "Class B Common Stock Option Notice") of any
plans it has to issue such shares or the date on which such event could first
occur. At least 20 business days prior to the issuance of any shares of
Nonvoting Stock or the first date on which any event could occur that, in the
absence of a full or partial
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exercise of the Nonvoting Stock Option, would result in the Limited Entities
owning less than 80 percent of each class of outstanding Nonvoting Stock,
Abercrombie & Fitch will notify The Limited in writing (a "Nonvoting Stock
Option Notice" and, together with a Class B Common Stock Option, an "Option
Notice") of any plans it has to issue such shares or the date on which such
event could first occur. Each Option Notice must specify the date on which
Abercrombie & Fitch intends to issue such additional shares or on which such
event could first occur (such issuance or event being referred to herein as an
"Issuance Event" and the date of such issuance or event as an "Issuance Event
Date"), the number of shares Abercrombie & Fitch intends to issue or may issue
and the other terms and conditions of such Issuance Event.
2.3. Option Exercise and Payment. The Class B Common Stock Option may be
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exercised by The Limited (or any Limited Entity to which all or any part of the
Class B Common Stock Option has been assigned) for a number of shares equal to
or less than the number of shares that are necessary for the Limited Entities to
maintain, in the aggregate, the Ownership Percentage. The Nonvoting Stock
Option may be exercised by The Limited (or any Limited Entity to which all or
any part of the Nonvoting Stock Option has been assigned) for a number of shares
equal to or less than the number of shares that are necessary for the Limited
Entities to own, in the aggregate, 80% of each class of outstanding Nonvoting
Stock. Each Option may be exercised at any time after receipt of an applicable
Option Notice and prior to the applicable Issuance Event Date by the delivery to
Abercrombie & Fitch of a written notice to such effect specifying (i) the number
of shares of Class B Common Stock or Nonvoting Stock (as the case may be) to be
purchased by The Limited, or any of the Limited Entities, and (ii) a calculation
of the exercise price for such shares. Upon any such exercise of either Option,
Abercrombie & Fitch will, simultaneously with the issuance of Class B Common
Stock, Class A Common Stock or Nonvoting Stock in connection with an Issuance
Event, deliver to The Limited (or any Limited Entity designated by The Limited),
against payment therefor, certificates (issued in the name of The Limited or its
permitted assignee hereunder, or as directed by The Limited) representing the
shares of Class B Common Stock or Nonvoting Stock (as the case may be) being
purchased upon such exercise. Payment for such shares shall be made by wire
transfer or intrabank transfer to such account as shall be specified by
Abercrombie & Fitch, for the full purchase price for such shares.
2.4. Effect of Failure to Exercise. Any failure by The Limited to exercise
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either Option, or any exercise for less than all shares purchasable under either
Option, in connection with any particular Issuance Event shall not affect The
Limited's right to exercise the relevant Option in connection with any
subsequent Issuance Event; provided, however, that, in the case of the Class B
Common Stock Option, the Ownership Percentage following such Issuance Event in
connection with which The Limited so failed to exercise such Option in full or
in part shall be recalculated as set forth in Section 1.1.
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2.5. Initial Public Offering. Notwithstanding the foregoing, The Limited
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shall not be entitled to exercise the Class B Common Stock Option in connection
with the Initial Public Offering of the Class A Common Stock.
2.6. Termination of Options. The Options shall terminate upon the occurrence
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of the first Issuance Event that results in the Ownership Percentage being less
than 60%, other than any Issuance Event in violation of this Agreement. Each
Option, or any portion thereof assigned to any Limited Entity other than The
Limited, also shall terminate in the event that the Person to whom such Option,
or such portion thereof has been transferred, ceases to be a Limited Entity for
any reason whatsoever.
ARTICLE III
REGISTRATION RIGHTS
3.1. Demand Registration - Registrable Securities. (a) Upon written notice
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provided at any time after the Initial Public Offering Date from any Holder of
Registrable Securities requesting that Abercrombie & Fitch effect the
registration under the Securities Act of any or all of the Registrable
Securities held by such Holder, which notice shall specify the intended method
or methods of disposition of such Registrable Securities, Abercrombie & Fitch
shall use its best efforts to effect the registration under the Securities Act
and applicable state securities laws of such Registrable Securities for
disposition in accordance with the intended method or methods of disposition
stated in such request (including in a Rule 415 Offering, if Abercrombie & Fitch
is then eligible to register such Registrable Securities on Form S-3 (or a
successor form) for such offering); provided that:
(i) with respect to any registration statement filed, or to be filed,
pursuant to this Section 3.1, if Abercrombie & Fitch shall furnish to the
Holders of Registrable Securities that have made such request a certified
resolution of the Board of Directors of Abercrombie & Fitch (adopted by the
affirmative vote of a majority of the directors not designated by the
Limited Entities) stating that in the Board of Directors' good faith
judgment it would (because of the existence of, or in anticipation of, any
acquisition or financing activity, or the unavailability for reasons beyond
Abercrombie & Fitch's reasonable control of any required financial
statements, or any other event or condition of similar significance to
Abercrombie & Fitch) be significantly disadvantageous (a "Disadvantageous
Condition") to Abercrombie & Fitch for such a registration statement to be
maintained effective, or to be filed and become effective, and setting
forth the general reasons for such judgment, Abercrombie & Fitch shall be
entitled to cause such registration statement to be withdrawn and the
effectiveness of such registration statement terminated, or, in the event
no registration statement has yet been filed, shall be entitled not to file
any such registration statement, until such Disadvantageous Condition no
longer exists (notice of which Abercrombie & Fitch shall promptly deliver
to such Holders). Upon receipt of any such notice of a
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Disadvantageous Condition, such Holders shall forthwith discontinue use of
the prospectus contained in such registration statement and, if so directed
by Abercrombie & Fitch, each such Holder will deliver to Abercrombie &
Fitch all copies, other than permanent file copies then in such Holder's
possession, of the prospectus then covering such Registrable Securities
current at the time of receipt of such notice; provided, that the filing of
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any such registration statement may not be delayed for a period in excess
of six months due to the occurrence of any particular Disadvantageous
Condition;
(ii) after the occurrence of the Limited Ownership Reduction, if any,
the Holders of Registrable Securities may collectively exercise their
rights under this Section 3.1 on not more than three occasions (it being
acknowledged that prior to the Limited Ownership Reduction, if any, there
shall be no limit to the number of occasions on which such Holders (other
than any of the Limited Transferees and their Affiliates (other than the
Limited Entities)) may exercise such rights); and
(iii) the Holders of Registrable Securities shall not have the right to
exercise registration rights pursuant to this Section 3.1 in any six-month
period following the registration and sale of Registrable Securities
effected pursuant to a prior exercise of the registration rights provided
in this Section 3.1.
(b) Notwithstanding any other provision of this Agreement to the contrary, a
registration requested by a Holder of Registrable Securities pursuant to this
Section 3.1 shall not be deemed to have been effected (and, therefore, not
requested for purposes of paragraph (a) above), (i) unless it has become
effective, (ii) if after it has become effective such registration is interfered
with by any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court for any reason other than a misrepresentation
or an omission by such Holder and, as a result thereof, the Registrable
Securities requested to be registered cannot be completely distributed in
accordance with the plan of distribution set forth in the related registration
statement or (iii) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration are not satisfied or waived other than by reason of some act or
omission by such Holder of Registrable Securities.
(c) In the event that any registration pursuant to this Section 3.1 shall
involve, in whole or in part, an underwritten offering, the Holders of a
majority of the Registrable Securities to be registered shall have the right to
designate an underwriter or underwriters as the lead or managing underwriters of
such underwritten offering reasonably acceptable to Abercrombie & Fitch and, in
connection with each registration pursuant to this Section 3.1, such Holders may
select one counsel to represent all such Holders.
(d) Abercrombie & Fitch shall have the right to cause the registration of
additional equity securities for sale for the account of any Person (including,
without limitation,
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Abercrombie & Fitch and any existing or former directors, officers or employees
of the Abercrombie & Fitch Entities) in any registration of Registrable
Securities requested by the Holders pursuant to paragraph (a) above; provided,
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that if such Holders are advised in writing (with a copy to Abercrombie & Fitch)
by a nationally recognized investment banking firm selected by such Holders
reasonably acceptable to Abercrombie & Fitch (which shall be the lead
underwriter or a managing underwriter in the case of an underwritten offering)
that, in such firm's good faith view, all or a part of such additional equity
securities cannot be sold and the inclusion of such additional equity securities
in such registration would be likely to have an adverse effect on the price,
timing or distribution of the offering and sale of the Registrable Securities
then contemplated by any Holder, the registration of such additional equity
securities or part thereof shall not be permitted. The Holders of the
Registrable Securities to be offered may require that any such additional equity
securities be included in the offering proposed by such Holders on the same
conditions as the Registrable Securities that are included therein. In the event
that the number of Registrable Securities requested to be included in a
registration statement by the Holders thereof exceeds the number which, in the
good faith view of such investment banking firm, can be sold without adversely
affecting the price, timing, distribution or sale of securities in the offering,
the number shall be allocated pro rata among the requesting Holders on the basis
of the relative number of Registrable Securities then held by each such Holder
(provided that any number in excess of a Holder's request may be reallocated
among the remaining requesting Holders in a like manner).
3.2. Piggyback Registration. In the event that Abercrombie & Fitch at any
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time after the Initial Public Offering Date proposes to register any of its
Common Stock, any other of its equity securities or securities convertible into
or exchangeable for its equity securities (collectively, including Common Stock,
"Other Securities") under the Securities Act, whether or not for sale for its
own account, in a manner that would permit registration of Registerable
Securities for sale for cash to the public under the Securities Act, it shall at
each such time give prompt written notice to each Holder of Registrable
Securities of its intention to do so and of the rights of such Holder under this
Section 3.2. Subject to the terms and conditions hereof, such notice shall
offer each such Holder the opportunity to include in such registration statement
such number of Registerable Securities as such Holder may request. Upon the
written request of any such Holder made within 15 days after the receipt of
Abercrombie & Fitch's notice (which request shall specify the number of
Registrable Securities intended to be disposed of and the intended method of
disposition thereof), Abercrombie & Fitch shall use its best efforts to effect,
in connection with the registration of the Other Securities, the registration
under the Securities Act of all Registrable Securities which Abercrombie & Fitch
has been so requested to register, to the extent required to permit the
disposition (in accordance with such intended methods thereof) of the
Registrable Securities so requested to be registered; provided, that:
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(a) if, at any time after giving such written notice of its intention to
register any Other Securities and prior to the effective date of the
registration statement filed in connection with such registration, Abercrombie &
Fitch shall determine for any reason not
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to register the Other Securities, Abercrombie & Fitch may, at its election, give
written notice of such determination to such Holders and thereupon Abercrombie &
Fitch shall be relieved of its obligation to register such Registrable
Securities in connection with the registration of such Other Securities, without
prejudice, however, to the rights of the Holders of Registrable Securities
immediately to request that such registration be effected as a registration
under Section 3.1 to the extent permitted thereunder;
(b) if the registration referred to in the first sentence of this
Section 3.2 is to be an underwritten registration on behalf of Abercrombie &
Fitch, and a nationally recognized investment banking firm selected by
Abercrombie & Fitch advises Abercrombie & Fitch in writing that, in such firm's
good faith view, the inclusion of all or a part of such Registrable Securities
in such registration would be likely to have an adverse effect upon the price,
timing or distribution of the offering and sale of the Other Securities then
contemplated, Abercrombie & Fitch shall include in such registration: (i)
first, all Other Securities Abercrombie & Fitch proposes to sell for its own
account ("Company Securities"), (ii) second, up to the full number of
Registrable Securities held by Holders constituting the Limited Entities that
are requested to be included in such registration (Registrable Securities that
are so held being sometimes referred to herein as "Holder Securities") in excess
of the number of Company Securities to be sold in such offering which, in the
good faith view of such investment banking firm, can be sold without adversely
affecting such offering and the sale of the Other Securities then contemplated
(and (x) if such number is less than the full number of such Holder Securities,
such number shall be allocated by The Limited among such Limited Entities and
(y) in the event that such investment banking firm advises that less than all of
such Holder Securities may be included in such offering, such Limited Entities
may withdraw their request for registration of their Registrable Securities
under this Section 3.2 and 90 days subsequent to the effective date of the
registration statement for the registration of such Other Securities request
that such registration be effected as a registration under Section 3.1 to the
extent permitted thereunder), (iii) third, up to the full number of Registrable
Securities held by Holders (other than the Limited Entities) of Registrable
Securities that are requested to be included in such registration in excess of
the number of Company Securities and Holder Securities to be sold in such
offering which, in the good faith view of such investment banking firm, can be
so sold without so adversely affecting such offering (and (x) if such number is
less than the full number of such Registrable Securities, such number shall be
allocated pro rata among such Holders on the basis of the number of Registrable
Securities requested to be included therein by each such Holder and (y) in the
event that such investment banking firm advises that less than all of such
Registrable Securities may be included in such offering, such Holders may
withdraw their request for registration of their Registrable Securities under
this Section 3.2 and 90 days subsequent to the effective date of the
registration statement for the registration of such Other Securities request
that such registration be effected as a registration under Section 3.1 to the
extent permitted thereunder), and (iv) fourth, up to the full number of the
Other Securities (other than Company Securities), if any, in excess of the
number of Company Securities and Registrable Securities to be sold in such
offering which, in the good faith view of such investment banking firm, can be
so sold
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without so adversely affecting such offering (and, if such number is less than
the full number of such Other Securities, such number shall be allocated pro
rata among the holders of such Other Securities (other than Company Securities)
on the basis of the number of securities requested to be included therein by
each such holder);
(c) if the registration referred to in the first sentence of this
Section 3.2 is to be an underwritten secondary registration on behalf of holders
of Other Securities (the "Other Holders"), and the lead underwriter or managing
underwriter advises Abercrombie & Fitch in writing that in their good faith
view, all or a part of such additional securities cannot be sold and the
inclusion of such additional securities in such registration would be likely to
have an adverse effect on the price, timing or distribution of the offering and
sale of the Other Securities then contemplated, Abercrombie & Fitch shall
include in such registration the number of securities (including Registrable
Securities) that such underwriters advise can be so sold without adversely
affecting such offering, allocated pro rata among the Other Holders and the
Holders of Registrable Securities on the basis of the number of securities
(including Registrable Securities) requested to be included therein by each
Other Holder and each Holder of Registrable Securities; provided, that if such
--------
registration statement is to be filed at any time after the Limited Ownership
Reduction, if any, and if such Other Holders have requested that such
registration statement be filed pursuant to demand registration rights granted
to them by Abercrombie & Fitch, Abercrombie & Fitch shall include in such
registration (1) first, Other Securities sought to be included therein by the
Other Holders pursuant to the exercise of such demand registration rights, (2)
second, the number of Holder Securities sought to be included in such
registration in excess of the number of Other Securities sought to be included
in such registration by the Other Holders which in the good faith view of such
investment banking firm, can be so sold without so adversely affecting such
offering (and (x) if such number is less than the full number of such Holder
Securities, such number shall be allocated by The Limited among such Limited
Entities and (y) in the event that such investment banking firm advises that
less than all of such Holder Securities may be included in such offering, such
Limited Entities may withdraw their request for registration of their
Registrable Securities under this Section 3.2 and 90 days subsequent to the
effective date of the registration statement for the registration of such Other
Securities request that such registration be effected as a registration under
Section 3.1 to the extent permitted thereunder) and (3) third, the number of
Registrable Securities sought to be included in such registration by Holders
(other than the Limited Entities) of Registrable Securities in excess of the
number of Other Securities and the number of Holder Securities sought to be
included in such registration which, in the good faith view of such investment
banking firm, can be so sold without so adversely affecting such offering (and
(x) if such number is less than the full number of such Registrable Securities,
such number shall be allocated pro rata among such Holders on the basis of the
number of Registrable Securities requested to be included therein by each such
Holder and (y) in the event that such investment banking firm advises that less
than all of such Registrable Securities may be included in such offering, such
Holders may withdraw their request for registration of their Registrable
Securities under this Section 3.2 and 90 days subsequent to the effective date
of the registration statement for the registration
12
of such Other Securities request that such registration be effected as a
registration under Section 3.l to the extent permitted thereunder);
(d) Abercrombie & Fitch shall not be required to effect any registration
of Registrable Securities under this Section 3.2 incidental to the registration
of any of its securities in connection with mergers, acquisitions, exchange
offers, subscription offers, dividend reinvestment plans or stock option or
other executive or employee benefit or compensation plans; and
(e) no registration of Registrable Securities effected under this
Section 3.2 shall relieve Abercrombie & Fitch of its obligation to effect a
registration of Registrable Securities pursuant to Section 3.1.
3.3. Expenses. Except as provided herein, Abercrombie & Fitch shall pay
--------
all Registration Expenses with respect to a particular offering (or proposed
offering). Notwithstanding the foregoing, each Holder and Abercrombie & Fitch
shall be responsible for its own internal administrative and similar costs,
which shall not constitute Registration Expenses.
3.4. Registration and Qualification. If and whenever Abercrombie &
------------------------------
Fitch is required to effect the registration of any Registrable Securities under
the Securities Act as provided in Sections 3.1 or 3.2, Abercrombie & Fitch shall
as promptly as practicable:
(a) prepare, file and use its best efforts to cause to become effective
a registration statement under the Securities Act relating to the Registrable
Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities until the earlier of (A) such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition set forth in such registration statement and (B) the
expiration of six-months after such registration statement becomes effective;
provided, that such six-month period shall be extended for such number of days
--------
that equals the number of days elapsing from (x) the date the written notice
contemplated by paragraph (f) below is given by Abercrombie & Fitch to (y) the
date on which Abercrombie & Fitch delivers to the Holders of Registrable
Securities the supplement or amendment contemplated by paragraph (f) below;
(c) furnish to the Holders of Registrable Securities and to any
underwriter of such Registrable Securities such number of conformed copies of
such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such
13
number of copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, such documents
incorporated by reference in such registration statement or prospectus, and such
other documents, as the Holders of Registrable Securities or such underwriter
may reasonably request, and a copy of any and all transmittal letters or other
correspondence to or received from, the SEC or any other governmental agency or
self-regulatory body or other body having jurisdiction (including any domestic
or foreign securities exchange) relating to such offering;
(d) use its best efforts to register or qualify all Registrable
Securities covered by such registration statement under the securities or blue
sky laws of such jurisdictions as the Holders of such Registrable Securities or
any underwriter to such Registrable Securities shall request, and use its best
efforts to obtain all appropriate registrations, permits and consents in
connection therewith, and do any and all other acts and things which may be
necessary or advisable to enable the Holders of Registrable Securities or any
such underwriter to consummate the disposition in such jurisdictions of its
Registrable Securities covered by such registration statement; provided, that
--------
Abercrombie & Fitch shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any such jurisdiction
wherein it is not so qualified or to consent to general service of process in
any such jurisdiction;
(e) (i) use its best efforts to furnish to each Holder of Registrable
Securities included in such registration (each, a "Selling Holder") and to any
underwriter of such Registrable Securities an opinion of counsel for Abercrombie
& Fitch addressed to each Selling Holder and dated the date of the closing under
the underwriting agreement (if any) (or if such offering is not underwritten,
dated the effective date of the registration statement), and (ii) use its best
efforts to furnish to each Selling Holder a "cold comfort" letter addressed to
each Selling Holder and signed by the independent public accountants who have
audited the financial statements of Abercrombie & Fitch included in such
registration statement, in each such case covering substantially the same
matters with respect to such registration statement (and the prospectus included
therein) as are customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to underwriters in underwritten public offerings
of securities and such other matters as the Selling Holders may reasonably
request and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements;
(f) as promptly as practicable, notify the Selling Holders in writing
(i) at any time when a prospectus relating to a registration pursuant to
Sections 3.1 or 3.2 is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (ii) of any request by the SEC or any
other regulatory body
14
or other body having jurisdiction for any amendment of or supplement to any
registration statement or other document relating to such offering, and in
either such case, at the request of the Selling Holders prepare and furnish to
the Selling Holders a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading:
(g) if reasonably requested by the lead or managing underwriters, use
its best efforts to list all such Registrable Securities covered by such
registration on each securities exchange and automated inter-dealer quotation
system on which a class of common equity securities of Abercrombie & Fitch is
then listed;
(h) to the extent reasonably requested by the lead or managing
underwriters, send appropriate officers of Abercrombie & Fitch to attend any
"road shows" scheduled in connection with any such registration, with all out-
of-pocket costs and expense incurred by Abercrombie & Fitch or such officers in
connection with such attendance to be paid by Abercrombie & Fitch; and
(i) furnish for delivery in connection with the closing of any offering
of Registrable Securities pursuant to a registration effected pursuant to
Sections 3.1 or 3.2 unlegended certificates representing ownership of the
Registrable Securities being sold in such denominations as shall be requested by
the Selling Holders or the underwriters.
3.5. Conversion of Other Securities, Etc. In the event that any Holder
------------------------------------
offers any options, rights, warrants or other securities issued by it or any
other Person that are offered with, convertible into or exercisable or
exchangeable for any Registrable Securities, the Registrable Securities
underlying such options, rights, warrants or other securities shall continue to
be eligible for registration pursuant to Sections 3.1 and 3.2.
3.6. Underwriting; Due Diligence. (a) If requested by the underwriters
---------------------------
for any underwritten offering of Registrable Securities pursuant to a
registration requested under this Article III, Abercrombie & Fitch shall enter
into an underwriting agreement with such underwriters for such offering, which
agreement will contain such representations and warranties by Abercrombie &
Fitch and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnification and contribution provisions substantially to
the effect and to the extent provided in Section 3.7, and agreements as to the
provision of opinions of counsel and accountants' letters to the effect and to
the extent provided in Section 3.4(e). The Selling Holders on whose behalf the
Registrable Securities are to be distributed by such underwriters shall be
parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, Abercrombie & Fitch to
and for the
15
benefit of such underwriters, shall also be made to and for the benefit of such
Selling Holders. Such underwriting agreement shall also contain such
representations and warranties by such Selling Holders and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnification and
contribution provisions substantially to the effect and to the extent provided
in Section 3.7.
(b) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act pursuant
to this Article III, Abercrombie & Fitch shall give the Holders of such
Registrable Securities and the underwriters, if any, and their respective
counsel and accountants, such reasonable and customary access to its books and
records and such opportunities to discuss the business of Abercrombie & Fitch
with its officers and the independent public accountants who have certified the
financial statements of Abercrombie & Fitch as shall be necessary, in the
opinion of such Holders and such underwriters or their respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act;
provided, that such Holders and the underwriters and their respective counsel
and accountants shall use their reasonable best efforts to coordinate any such
investigation of the books and records of Abercrombie & Fitch and any such
discussions with Abercrombie & Fitch's officers and accountants so that all such
investigations occur at the same time and all such discussions occur at the same
time.
3.7. Indemnification and Contribution. (a) In the case of each
--------------------------------
offering of Registrable Securities made pursuant to this Article III,
Abercrombie & Fitch agrees to indemnify and hold harmless, to the extent
permitted by law, each Selling Holder, each underwriter of Registrable
Securities so offered and each Person, if any, who controls any of the foregoing
Persons within the meaning of the Securities Act and the officers, directors,
affiliates, employees and agents of each of the foregoing, against any and all
losses, liabilities, costs (including reasonable attorney's fees and
disbursements), claims and damages, joint or several, to which they or any of
them may become subject, under the Securities Act or otherwise, including any
amount paid in settlement of any litigation commenced or threatened, insofar as
such losses, liabilities, costs, claims and damages (or actions or proceedings
in respect thereof, whether or not such indemnified Person is a party thereto)
arise out of or are based upon any untrue statement by Abercrombie & Fitch or
alleged untrue statement by Abercrombie & Fitch of a material fact contained in
the registration statement (or in any preliminary or final prospectus included
therein) or in any offering memorandum or other offering document relating to
the offering and sale of such Registrable Securities prepared by Abercrombie &
Fitch or at its direction, or any amendment thereof or supplement thereto, or in
any document incorporated by reference therein, or any omission by Abercrombie &
Fitch or alleged omission by Abercrombie & Fitch to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, that Abercrombie & Fitch shall not be liable to any
--------
Person in any such case to the extent that any such loss, liability, cost, claim
or damage arises out of or relates to any untrue statement or alleged untrue
statement, or any omission, if such statement or omission shall have been made
16
in reliance upon and in conformity with information relating to a Selling Holder
or another holder of securities included in such registration statement
furnished to Abercrombie & Fitch by or on behalf of such Selling Holder, other
holder or underwriter, as the case may be, specifically for use in the
registration statement (or in any preliminary or final prospectus included
therein), offering memorandum or other offering document, or any amendment
thereof or supplement thereto. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any Selling
Holder or any other holder and shall survive the transfer of such securities.
The foregoing indemnity agreement is in addition to any liability that
Abercrombie & Fitch may otherwise have to each Selling Holder, other holder or
underwriter of the Registrable Securities or any controlling person of the
foregoing and the officers, directors, affiliates, employees and agents of each
of the foregoing; provided, further, that, in the case of an offering with
-----------------
respect to which a Selling Holder has designated the lead or managing
underwriters (or a Selling Holder is offering Registrable Securities directly,
without an underwriter), this indemnity does not apply to any loss, liability,
cost, claim or damage arising out of or relating to any untrue statement or
alleged untrue statement or omission or alleged omission in any preliminary
prospectus or offering memorandum if a copy of a final prospectus or offering
memorandum was not sent or given by or on behalf of any underwriter (or such
Selling Holder or other holder, as the case may be) to such Person asserting
such loss, liability, cost, claim or damage at or prior to the written
confirmation of the sale of the Registrable Securities as required by the
Securities Act and such untrue statement or omission had been corrected in such
final prospectus or offering memorandum.
(b) In the case of each offering made pursuant to this Agreement, each
Selling Holder, by exercising its registration rights hereunder, agrees to
indemnify and hold harmless, and to cause each underwriter of Registrable
Securities included in such offering (in the same manner and to the same extent
as set forth in Section 3.7(a)) to agree to indemnify and hold harmless,
Abercrombie & Fitch, each other underwriter who participates in such offering,
each other Selling Holder or other holder with securities included in such
offering and in the case of an underwriter, such Selling Holder or other holder,
and each Person, if any, who controls any of the foregoing within the meaning of
the Securities Act and the officers, directors, affiliates, employees and agents
of each of the foregoing, against any and all losses, liabilities, costs, claims
and damages to which they or any of them may become subject, under the
Securities Act or otherwise, including any amount paid in settlement of any
litigation commenced or threatened, insofar as such losses, liabilities, costs,
claims and damages (or actions or proceedings in respect thereof, whether or not
such indemnified Person is a party thereto) arise out of or are based upon any
untrue statement or alleged untrue statement by such Selling Holder or
underwriter, as the case may be, of a material fact contained in the
registration statement (or in any preliminary or final prospectus included
therein) or in any offering memorandum or other offering document relating to
the offering and sale of such Registrable Securities prepared by Abercrombie &
Fitch or at its direction, or any amendment thereof or supplement thereto, or
any omission by such Selling Holder or underwriter, as the case may be, or
alleged omission by such Selling Holder or underwriter, as the case may be, of a
material fact required to be stated therein or necessary to make the statements
therein not
17
misleading, but in each case only to the extent that such untrue statement of a
material fact is contained in, or such material fact is omitted from,
information relating to such Selling Holder or underwriter, as the case may be,
furnished to Abercrombie & Fitch by or on behalf of such Selling Holder or
underwriter, as the case may be, specifically for use in such registration
statement (or in any preliminary or final prospectus included therein), offering
memorandum or other offering document. The foregoing indemnity is in addition to
any liability which such Selling Holder or underwriter, as the case may be, may
otherwise have to Abercrombie & Fitch, or controlling persons and the officers,
directors, affiliates, employees, and agents of each of the foregoing; provided,
--------
that, in the case of an offering made pursuant to this Agreement with respect to
which Abercrombie & Fitch has designated the lead or managing underwriters (or
Abercrombie & Fitch is offering securities directly, without an underwriter),
this indemnity does not apply to any loss, liability, cost, claim, or damage
arising out of or based upon any untrue statement or alleged untrue statement or
omission or alleged omission in any preliminary prospectus or offering
memorandum if a copy of a final prospectus or offering memorandum was not sent
or given by or on behalf of any underwriter (or Abercrombie & Fitch, as the case
may be) to such Person asserting such loss, liability, cost, claim or damage at
or prior to the written confirmation of the sale of the Registrable Securities
as required by the Securities Act and such untrue statement or omission had been
corrected in such final prospectus or offering memorandum.
(c) Each party indemnified under paragraph (a) or (b) above shall,
promptly after receipt of notice of a claim or action against such indemnified
part in respect of which indemnity may be sought hereunder, notify the
indemnifying party in writing of the claim or action; provided, that the failure
--------
to notify the indemnifying party shall not relieve it from any liability that it
may have to an indemnified party on account of the indemnity agreement contained
in paragraph (a) or (b) above except to the extent that the indemnifying party
was actually prejudiced by such failure, and in no event shall such failure
relieve the indemnifying party from any other liability that it may have to such
indemnified party. If any such claim or action shall be brought against an
indemnified party, and it shall have notified the indemnifying party thereof,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified party and indemnifying parties may exist in respect of
such claim, the indemnifying party shall be entitled to participate therein,
and, to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel satisfactory to
the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or action,
the indemnifying party shall not be liable to the indemnified party under this
Section 3.7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. Any indemnifying party against whom indemnity may be
sought under this Section 3.7 shall not be liable to indemnify an indemnified
party if such indemnified party settles such claim or action without the consent
of the indemnifying party. The indemnifying party may not agree to any
settlement of any such claim or action, other than solely for monetary damages
for which the indemnifying party shall be responsible hereunder, the result of
which any remedy or relief shall be applied to or
18
against the indemnified party, without the prior written consent of the
indemnified party, which consent shall not be unreasonably withheld. In any
action hereunder as to which the indemnifying party has assumed the defense
thereof with counsel satisfactory to the indemnified party, the indemnified
party shall continue to be entitled to participate in the defense thereof, with
counsel of its own choice, but the indemnifying party shall not be obligated
hereunder to reimburse the indemnified party for the costs thereof.
(d) If the indemnification provided for in this Section 3.7 shall for any
reason be unavailable (other than in accordance with its terms) to an
indemnified party in respect of any loss, liability, cost, claim or damage
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, cost, claim or damage (i)
as between Abercrombie & Fitch and the Selling Holders on the one hand and the
underwriters on the other, in such proportion as shall be appropriate to reflect
the relative benefits received by Abercrombie & Fitch and the Selling Holders on
the one hand and the underwriters on the other hand or, if such allocation is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits but also the relative fault of Abercrombie &
Fitch and the Selling Holders on the one hand and the underwriters on the other
with respect to the statements or omissions which resulted in such loss,
liability, cost, claim or damage as well as any other relevant equitable
considerations and (ii) as between Abercrombie & Fitch on the one hand and each
Selling Holder on the other, in such proportion as is appropriate to reflect the
relative fault of Abercrombie & Fitch and of each Selling Holder in connection
with such statements or omissions as well as any other relevant equitable
considerations. The relative benefits received by Abercrombie & Fitch and the
Selling Holders on the one hand and the underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the offering (net
of underwriting discounts and commissions but before deducting expenses)
received by Abercrombie & Fitch and the Selling Holders bear to the total
underwriting discounts and commissions received by the underwriters, in each
case as set forth in the table on the cover page of the prospectus. The
relative fault of Abercrombie & Fitch and the Selling Holders on the one hand
and of the underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by
Abercrombie & Fitch and the Selling Holders or by the underwriters. The
relative fault of Abercrombie & Fitch on the one hand and of each Selling Holder
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission, but not by
reference to any indemnified party's stock ownership in Abercrombie & Fitch.
The amount paid or payable by an indemnified party as a result of the loss,
cost, claim, damage or liability, or action in respect thereof, referred to
above in this paragraph (d) shall be deemed to include, for purposes of this
paragraph (d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
19
any such action or claim. Abercrombie & Fitch and the Selling Holders agree that
it would not be just and equitable if contribution pursuant to this Section 3.7
were determined by pro rata allocation (even if the underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this paragraph.
Notwithstanding any other provision of this Section 3.7, no Selling Holder shall
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such Selling Holder were offered to
the public exceeds the amount of any damages which such Selling Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. Each Selling Holder's obligations to
contribute pursuant to this Section 3.7 are several in proportion to the
proceeds of the offering received by such Selling Holder bears to the total
proceeds of the offering received by all the Selling Holders and not joint. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) Indemnification and contribution similar to that specified in the
preceding paragraphs of this Section 3.7 (with appropriate modifications) shall
be given by Abercrombie & Fitch, the Selling Holders and underwriters with
respect to any required registration or other qualification of securities under
any state law or regulation or governmental authority.
(f) The obligations of the parties under this Section 3.7 shall be in
addition to any liability which any party may otherwise have to any other party.
3.8. Rule 144 and Form S-3. Commencing 90 days after the Initial Public
---------------------
Offering Date, Abercrombie & Fitch shall use its best efforts to ensure that the
conditions to the availability of Rule 144 set forth in paragraph (c) thereof
shall be satisfied. Upon the request of any Holder of Registrable Securities,
Abercrombie & Fitch will deliver to such Holder a written statement as to
whether it has complied with such requirements. Abercrombie & Fitch further
agrees to use its reasonable efforts to cause all conditions to the availability
of Form S-3 (or any successor form) under the Securities Act of the filing of
registration statements under this Agreement to be met as soon as practicable
after the Initial Public Offering Date. Notwithstanding anything contained in
this Section 3.8, Abercrombie & Fitch may deregister under Section 12 of the
Securities Exchange Act of 1934, as amended, if it then is permitted to do so
pursuant to said Act and the rules and regulations thereunder.
3.9. Transfer of Registration Rights. Any Holder may transfer all or
-------------------------------
any portion of its rights under Article III to any transferee of a number of
Registrable Securities owned by such Holder exceeding three percent (3%) of the
outstanding class or series of such securities at the time of transfer (each
transferee that receives such minimum number of Registrable Securities, a
"Transferee"); provided, that each Transferee of Registrable
--------
20
Securities to which Registrable Securities are transferred, sold or assigned
directly by a Limited Entity (such Transferee, a "Limited Transferee"), together
with any Affiliate of such Limited Transferee (and any subsequent direct or
indirect Transferees of Registrable Securities from such Limited Transferee and
any Affiliates (other than the Limited Entities) thereof), shall be entitled to
request the registration of Registrable Securities pursuant to Section 3.1 only
once. Any transfer of registration rights pursuant to this Section 3.9 shall be
effective upon receipt by Abercrombie & Fitch of (i) written notice from such
Holder stating the name and address of any Transferee and identifying the number
of Registrable Securities with respect to which the rights under this Agreement
are being transferred and the nature of the rights so transferred and (ii) a
written agreement from such Transferee to be bound by the terms of this Article
III and Sections 5.3, 5.4, 5.9, 5.10, and 5.11 of this Agreement. The Holders
may exercise their rights hereunder in such priority as they shall agree upon
among themselves.
3.10. Holdback Agreement. If any registration pursuant to this Article
------------------
III shall be in connection with an underwritten public offering of Registrable
Securities, each Selling Holder agrees not to effect any public sale or
distribution, including any sale under Rule 144, of any equity security of
Abercrombie & Fitch (otherwise than through the registered public offering then
being made), within 7 days prior to or 90 days (or such lesser period as the
lead or managing underwriters may permit) after the effective date of the
registration statement (or the commencement of the offering to the public of
such Registrable Securities in the case of Rule 415 offerings). Abercrombie &
Fitch hereby also so agrees and agrees to cause each other holder of equity
securities or securities convertible into or exchangeable or exercisable for
such securities (other than in the case of equity securities, under dividend
reinvestment plans or employee stock plans) purchased from Abercrombie & Fitch
otherwise than in a public offering to so agree.
ARTICLE IV
CERTAIN COVENANTS AND AGREEMENTS
4.1. No Violations. (a) For so long as the Ownership Percentage is
-------------
equal to or greater than 50%, Abercrombie & Fitch covenants and agrees that it
will not take any action or enter into any commitment or agreement which may
reasonably be anticipated to result, with or without notice and with or without
lapse of time or otherwise, in a contravention or event of default by any
Limited Entity of (i) any provisions of applicable law or regulation, including
but not limited to provisions pertaining to the Internal Revenue Code of 1986,
as amended, or the Employee Retirement Income Security Act of 1974, as amended,
(ii) any provision of The Limited's certificate of incorporation or bylaws,
(iii) any credit agreement or other material instrument binding upon The
Limited, or (iv) any judgment, order or decree of any governmental body, agency
or court having jurisdiction over The Limited or any of their respective assets.
21
(b) Abercrombie & Fitch and The Limited agree to provide to the other
any information and documentation requested by the other for the purpose of
evaluating and ensuring compliance with Section 4.1(a) hereof.
(c) Notwithstanding the foregoing Sections 4.1(a) and 4.1(b), nothing in
this Agreement is intended to limit or restrict in any way the ability of The
Limited to effect, restrict or limit any action or proposed action of
Abercrombie & Fitch, including, but not limited to, the incurrence by
Abercrombie & Fitch of indebtedness, based upon The Limited's internal policies
or other factors.
ARTICLE V
MISCELLANEOUS
5.1. Limitation of Liability. Neither The Limited nor Abercrombie &
-----------------------
Fitch shall be liable to the other for any special, indirect, incidental or
consequential damages of the other arising in connection with this Agreement.
5.2. Subsidiaries. The Limited agrees and acknowledges that The Limited
------------
shall be responsible for the performance by each Limited Entity of the
obligations hereunder applicable to such Limited Entity.
5.3. Amendments. This Agreement may not be amended or terminated
----------
orally, but only by a writing duly executed by or on behalf of the parties
hereto. Any such amendment shall be validly and sufficiently authorized for
purposes of this Agreement if it is signed on behalf of The Limited and
Abercrombie & Fitch by any of their respective presidents or vice presidents.
5.4. Term. This Agreement shall remain in effect until all Registrable
----
Securities held by Holders have been transferred by them to Persons other than
Transferees; provided, that the provisions of Section 3.7 shall survive any such
--------
expiration.
5.5. Severability. If any provision of this Agreement or the
------------
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement or such provision
of the application of such provision to such party or circumstances, other than
those to which it is so determined to be invalid, illegal or unenforceable,
shall remain in full force and effect to the fullest extent permitted by law and
shall not be affected thereby, unless such a construction would be unreasonable.
5.6 Notices. All notices and other communications required or permitted
-------
hereunder shall be in writing, shall be deemed duly given upon actual receipt,
and shall be delivered (a) in person, (b) by registered or certified mail,
postage prepaid, return receipt
22
requested, or (c) by facsimile or other generally accepted means of electronic
transmission (provided that a copy of any notice delivered pursuant to this
clause (c) shall also be sent pursuant to clause (b), addressed as follows:
(a) If to Abercrombie & Fitch, to:
Abercrombie & Fitch Co.
Four Limited Parkway
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Fax: 000-000-0000
(b) If to The Limited, to:
The Limited, Inc.
Three Limited Parkway
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Fax: 000-000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Fax: 000-000-0000
or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties.
5.7. Further Assurances. The Limited and Abercrombie & Fitch shall
------------------
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such instruments and take such other action as may be necessary or
advisable to carry out their obligations under this Agreement and under any
exhibit, document or other instrument delivered pursuant hereto.
5.8. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original instrument, but all of
which together shall constitute but one and the same agreement.
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5.9. Governing Law. This Agreement and the transactions contemplated
-------------
hereby shall be construed in accordance with, and governed by, the laws of the
State of New York.
5.10. Entire Agreement. This Agreement constitutes the entire
----------------
understanding of the parties hereto with respect to the subject matter hereof.
5.11. Successors. This Agreement shall be binding upon, and shall inure
----------
to the benefit of, the parties hereto and their respective successors and
assigns. Nothing contained in this Agreement, express or implied, is intended
to confer upon any other person or entity any benefits, rights or remedies.
5.12. Specific Performance. The parties hereto acknowledge and agree
--------------------
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. Accordingly, it is agreed that they shall be entitled
to an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any state thereof, in
addition to any other remedy to which they may be entitled at law or equity.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
ABERCROMBIE & FITCH CO.
By: /s/ Xxxxxxx X. Xxxxxx
______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman and Chief
Financial Officer
THE LIMITED, INC.
By: /s/ Xxxxxxx X. Xxxxxx
______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman and Chief
Financial Officer
25
