Certificate of Incorporation - Abercrombie & Fitch Co.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
ABERCROMBIE & FITCH CO.
* * * * *
Abercrombie & Fitch Co. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware does hereby amend the Certificate of Incorporation of the Corporation,
which was originally filed on June 26, 1996, under the name Abercrombie & Fitch,
Inc.
FIRST. The name of the Corporation is:
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ABERCROMBIE & FITCH CO.
SECOND. The address of the registered office of the Corporation in the
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State of Delaware is Corporation Service Company, 1013 Centre Road, City of
Wilmington, County of New Castle, Delaware 19805. The name of its registered
agent at such address is Corporation Service Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or
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activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended
("Delaware Law").
FOURTH.
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Section 1. Capital Stock. (a) The total number of shares of stock which
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the Corporation shall have authority to issue is 315,000,000, consisting of
300,000,000 shares of Common Stock, par value $.01 per share (the "Common
Stock"), and 15,000,000 shares of Preferred Stock, par value $.01 per share (the
"Preferred Stock"). The Common Stock of the Corporation shall be all of one
class, and shall be divided into two classes, consisting of Class A Common Stock
and Class B Common Stock. The Preferred Stock may be issued in one or more
series having such designations as may be fixed by the Board of Directors.
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(b) The Board of Directors is expressly authorized to provide for the
issue of all or any shares of the Common Stock and the Preferred Stock, to
determine the number of shares of each class and to fix for each class of Common
Stock and for any series of Preferred Stock such voting powers, full or limited,
or no voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and such qualifications,
limitations or restrictions thereof, as shall be stated and expressed in the
resolution or resolutions adopted by the Board of Directors or a duly authorized
committee thereof providing for the issue of such series and as may be permitted
by Delaware Law.
(c) The number of authorized shares of any class or classes of stock may
be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of a majority of the Common Stock of the
Corporation irrespective of the provisions of Section 242(b)(2) of Delaware Law.
Section 2. Common Stock. (a) Issuance and Consideration. Any unissued
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or treasury shares of the Common Stock may be issued for such consideration as
may be fixed in accordance with applicable law from time to time by the Board of
Directors.
(b) Dividends. Subject to the rights of holders of the Preferred Stock,
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the holders of the Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of the assets of the Corporation which
are by law available therefor, dividends payable either in cash, in property, or
in shares of stock and the holders of the Preferred Stock shall not be entitled
to participate in any such dividends (unless otherwise provided by the Board of
Directors in any resolution providing for the issue of a series of Preferred
Stock).
(c) Number of Shares. Of the 300,000,000 shares of Common Stock of the
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Corporation, 150,000,000 shares are initially designated as shares of Class A
Common Stock and 150,000,000 shares are initially designated as shares of Class
B Common Stock. The number of shares designated as Class A Common Stock or
Class B Common Stock may be increased or decreased from time to time by a
resolution or resolutions adopted by the Board of Directors or any duly
authorized committee thereof and in accordance with paragraph (d)(5)(E)
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below without the consent of the holders of any outstanding shares of Common
Stock or Preferred Stock.
(d) Powers, Preferences, Etc. The following is a statement of the powers,
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preferences, and relative participating, optional or other special rights and
qualifications, limitations and restrictions of the Class A Common Stock and
Class B Common Stock of the Corporation:
(1) Except as otherwise set forth below in this ARTICLE FOURTH, the
powers, preferences and relative participating, optional or other special rights
and qualifications, limitations or restrictions of the Class A Common Stock and
Class B Common Stock shall be identical in all respects.
(2) Subject to the rights of the holders of Preferred Stock, and subject
to any other provisions of this Amended and Restated Certificate of
Incorporation, holders of Class A Common Stock and Class B Common Stock shall be
entitled to receive such dividends and other distributions in cash, stock of any
corporation (other than Common Stock of the Corporation) or property of the
Corporation as may be declared thereon by the Board of Directors from time to
time out of assets or funds of the Corporation legally available therefor and
shall share equally on a per share basis in all such dividends and other
distributions. In the case of dividends or other distributions payable in
Common Stock, including distributions pursuant to stock splits or divisions of
Common Stock of the Corporation, only shares of Class A Common Stock shall be
paid or distributed with respect to Class A Common Stock and only shares of
Class B Common Stock shall be paid or distributed with respect to Class B Common
Stock. The number of shares of Class A Common Stock and Class B Common Stock so
distributed shall be equal in number on a per share basis. Neither the shares
of Class A Common Stock nor the shares of Class B Common Stock may be
reclassified, subdivided or combined unless such reclassification, subdivision
or combination occurs simultaneously and in the same proportion for each class.
(3)(A) At every meeting of the stockholders of the Corporation every
holder of Class A Common
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Stock shall be entitled to one vote in person or by proxy for each share of
Class A Common Stock standing in his or her name on the transfer books of the
Corporation, and every holder of Class B Common Stock shall be entitled to three
votes in person or by proxy for each share of Class B Common Stock standing in
his or her name on the transfer books of the Corporation in connection with the
election of directors and all other matters submitted to a vote of stockholders;
provided, however, that with respect to any proposed conversion of the shares of
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Class B Common Stock into shares of Class A Common Stock pursuant to paragraph
(d)(5)(B), every holder of a share of Common Stock, irrespective of class, shall
have one vote in person or by proxy for each share of Common Stock standing in
his or her name on the transfer books of the Corporation. Except as may be
otherwise required by law or by this ARTICLE FOURTH, the holders of Class A
Common Stock and Class B Common Stock shall vote together as a single class,
subject to any voting rights which may be granted to holders of Preferred Stock,
on all matters submitted to a vote of the holders of Common Stock.
(B) Every reference in this Amended and Restated Certificate of
Incorporation to a majority or other proportion of shares of Common Stock, Class
A Common Stock or Class B Common Stock, shall refer to such majority or other
proportion of the votes to which such shares of Common Stock, Class A Common
Stock or Class B Common Stock are entitled.
(4) In the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, whether voluntary or involuntary, after payment in
full of the amounts required to be paid to the holders of Preferred Stock, the
remaining assets and funds of the Corporation shall be distributed pro rata to
the holders of Class A Common Stock and Class B Common Stock. For the purposes
of this paragraph (d)(4), the voluntary sale, conveyance, lease, exchange or
transfer (for cash, shares of stock, securities or other consideration) of all
or substantially all of the assets of the Corporation or a consolidation or
merger of the Corporation with one or more other corporations (whether or not
the
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Corporation is the corporation surviving such consolidation or merger) shall not
be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary.
(5)(A) Prior to the earliest to occur of the date on which shares of Class
B Common Stock are issued to stockholders of The Limited, Inc. or its successors
("The Limited") in a Tax-Free Spin-Off (as defined in paragraph (d)(5)(B)) and
the date on which the number of shares of Class B Common Stock outstanding is
less than 60% of the aggregate number of shares of Common Stock outstanding and
a Tax-Free Spin-Off has not occurred, each share of Class B Common Stock is
convertible at the option of the holder thereof into one share of Class A Common
Stock. At the time of a voluntary conversion, the holder of shares of Class B
Common Stock shall deliver to the office of the Corporation or any transfer
agent for the Class B Common Stock (i) the certificate or certificates
representing the shares of Class B Common Stock to be converted, duly endorsed
in blank or accompanied by proper instruments of transfer, and (ii) written
notice to the Corporation stating that such holder elects to convert such share
or shares and stating the name and address in which each certificate for shares
of Class A Common Stock issued upon such conversion is to be issued. To the
extent permitted by law and subject to the taking of any necessary action or
making any filing contemplated by paragraph (d)(5)(E), such voluntary conversion
shall be deemed to have been effected at the close of business on the date when
such delivery is made to the Corporation or such transfer agent of the shares to
be converted, and the person exercising such voluntary conversion shall be
deemed to be the holder of record of the number of shares of Class A Common
Stock issuable upon such conversion at such time. The Corporation shall
promptly deliver certificates evidencing the appropriate number of shares of
Class A Common Stock to such person.
(B) Each share of Class B Common Stock shall automatically convert into
one share of Class A Common Stock upon the transfer of such share if, after such
transfer, such share is not beneficially owned by The Limited, unless such
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transfer is effected in connection with a transfer of Class B Common Stock to
stockholders of The Limited as a dividend intended to be on a tax-free basis
under the Internal Revenue Code of 1986, as amended from time to time (the
"Code"), (a "Tax-Free Spin-Off"). For purposes of this paragraph (d)(5), the
term "beneficially owned" with respect to shares of Class B Common Stock means
ownership by a person who, directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise controls the voting power
(which includes the power to vote or to direct the voting of) of such Class B
Common Stock. In the event of a Tax-Free Spin-Off, shares of Class B Common
Stock shall automatically convert into shares of Class A Common Stock on the
fifth anniversary of the date on which shares of Class B Common Stock are first
transferred to stockholders of The Limited in a Tax-Free Spin-Off unless, prior
to such Tax-Free Spin-Off, The Limited delivers to the Corporation an opinion of
The Limited's counsel (which counsel shall be reasonably satisfactory to the
Corporation) to the effect that such conversion would preclude The Limited from
obtaining a favorable ruling from the Internal Revenue Service that the
distribution would be a Tax-Free Spin-Off under the Code. If such an opinion is
received, approval of such conversion shall be submitted to a vote of the
holders of the Common Stock as soon as practicable after the fifth anniversary
of the Tax-Free Spin-Off unless The Limited delivers to the Corporation an
opinion of The Limited's counsel (which counsel shall be reasonably satisfactory
to the Corporation) prior to such anniversary to the effect that such vote would
adversely affect the status of the Tax-Free Spin-Off. At the meeting of
stockholders called for such purpose, every holder of Common Stock shall be
entitled to one vote in person or by proxy for each share of Common Stock
standing in his or her name on the transfer books of the Corporation. Approval
of such conversion shall require the approval of a majority of the votes
entitled to be cast by the holders of the Class A Common Stock and Class B
Common Stock present and voting, voting together as a single class, and the
holders of the Class B Common Stock shall not be entitled to a separate class
vote. Such conversion shall be effective on
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the date on which such approval is given at a meeting of stockholders called for
such purpose.
Each share of Class B Common Stock shall automatically convert into one
share of Class A Common Stock on the date on which the number of shares of Class
B Common Stock outstanding is less than 60% of the aggregate number of shares of
Common Stock outstanding and a Tax-Free Spin-Off has not occurred.
The Corporation shall at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but unissued Common
Stock and its issued Common Stock held in its treasury for the purpose of
effecting any conversion of the Class B Common Stock pursuant to this paragraph
(d)(5)(B), the full number of shares of Class A Common Stock then deliverable
upon any such conversion of all outstanding shares of Class B Common Stock.
The Corporation will provide notice of any automatic conversion of shares
of Class B Common Stock to holders of record of the Common Stock not less than
30 nor more than 60 days prior to the date fixed for such conversion; provided,
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however, that if the timing or nature of the effectiveness of an automatic
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conversion makes it impracticable to provide at least 30 days' notice, the
Corporation shall provide such notice as soon as practicable. Such notice shall
be provided by mailing notice of such conversion first class postage prepaid, to
each holder of record of the Common Stock, at such holder's address as it
appears on the transfer books of the Corporation; provided, however, that no
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failure to give such notice nor any defect therein shall affect the validity of
the automatic conversion of any shares of Class B Common Stock. Each such
notice shall state, as appropriate, the following:
(i) the automatic conversion date;
(ii) the number of outstanding shares of Class B Common Stock that are to be
converted automatically;
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(iii) the place or places where certificates for such shares are to be
surrendered for conversion; and
(iv) that no dividends will be declared on the shares of Class B
Common Stock converted after such conversion date.
Immediately upon such conversion, the rights of the holders of shares of
Class B Common Stock as such shall cease and such holders shall be treated for
all purposes as having become the record owners of the shares of Class A Common
Stock issuable upon such conversion; provided, however, that such persons shall
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be entitled to receive when paid any dividends declared on the Class B Common
Stock as of a record date preceding the time of such conversion and unpaid as of
the time of such conversion.
As promptly as practicable after the time of conversion, upon the delivery
to the Corporation of certificates formerly representing shares of Class B
Common Stock, the Corporation shall deliver or cause to be delivered, to or upon
the written order of the record holder of the surrendered certificates formerly
representing shares of Class B Common Stock, a certificate or certificates
representing the number of fully paid and nonassessable shares of Class A Common
Stock into which the shares of Class B Common Stock formerly represented by such
certificates have been converted in accordance with the provisions of this
paragraph (d)(5)(B).
(C) Subject to the provisions of this paragraph (d)(5)(C), from and after
the date on which shares of Class B Common Stock are transferred to the
stockholders of The Limited in a Tax-Free Spin-Off, (i) each share of Class A
Common Stock shall be convertible at the option of the holder thereof into one
share of Class B Common Stock on the date on which any person (other than The
Limited or any of its consolidated subsidiaries) or any group of persons (other
than a group composed of The Limited and/or one or more of its consolidated
subsidiaries) agreeing to act together for the purpose of acquiring, holding,
voting or disposing of shares of Class B Common Stock, shall make an offer,
which the Board of
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Directors determines in its sole discretion to be "bona fide", to holders of
Class B Common Stock to purchase 5% or more of the issued and outstanding shares
of such Class B Common Stock for cash or a combination of cash and other
securities or property and (ii) each share of Class B Common Stock shall be
convertible at the option of the holder thereof into one share of Class A Common
Stock on the date on which any person (other than The Limited or any of its
consolidated subsidiaries) or any group of persons (other than a group composed
of The Limited and/or one or more of its consolidated subsidiaries) agreeing to
act together for the purpose of acquiring, holding, voting or disposing of
shares of Class A Common Stock, shall make an offer, which the Board of
Directors determines in its sole discretion to be "bona fide", to holders of
Class A Common Stock to purchase 5% or more of the issued and outstanding shares
of Class A Common Stock for cash or a combination of cash and other securities
or property. The Corporation will provide notice in writing to all holders of
Common Stock of any offer referred to in the foregoing clauses (i) and (ii).
Such notice shall be provided by mailing notice of such offer, first class
postage prepaid, to each holder of the class of Common Stock then entitled to be
converted, at such holder's address as it appears on the transfer books of the
Corporation. The Common Stock shall be convertible under this paragraph
(d)(5)(C) as long as such offer shall remain in effect and shall not be
terminated, rescinded or completed, as determined by the Board of Directors in
its sole discretion. Notwithstanding the foregoing, each share of Common Stock
converted into a share of the other class of Common Stock pursuant to this
paragraph (d)(5)(C) and not purchased pursuant to such offer prior to the
termination, rescission or completion thereof, as determined by the Board of
Directors in its sole discretion, shall automatically be reconverted into a
share of Common Stock of the class from which it was converted pursuant to this
paragraph (d)(5)(C) upon the earliest to occur of the termination, rescission or
completion of such offer, as so determined by the Board of Directors.
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Any conversion pursuant to this paragraph (d)(5)(C) may be effected at the
office of the Corporation or any transfer agent for the Common Stock and at such
other place or places, if any, as the Board of Directors may designate. Upon
conversion pursuant to this paragraph (d)(5)(C), the Corporation shall make no
payment or adjustment on account of dividends accrued or in arrears on Common
Stock surrendered for conversion or on account of any dividends on Common Stock
issuable on such conversion. Before any holder of Common Stock shall be
entitled to convert the same into any other class of stock pursuant to this
paragraph (d)(5)(C), such holder shall surrender the certificate or certificates
for such Common Stock at the office of said transfer agent (or other place as
provided above). Such certificate(s), if the Corporation shall so request,
shall be duly endorsed to the Corporation or in blank or accompanied by proper
instruments of transfer to the Corporation or in blank (such endorsements or
instruments of transfer to be in form satisfactory to the Corporation). Such
certificate(s) shall be accompanied by a written notice to the Corporation at
said office stating that such holder elects to convert all or a specified number
of Common Stock represented by such certificate(s) in accordance with this
paragraph (d)(5)(C) and stating the name(s) in which such holder desires the
certificate(s) representing the stock to be issued. Such written notice shall
also state the name(s) of the person(s) making the offer entitling such holder
to convert such Common Stock. The Corporation will, as soon as practicable
after deposit of the certificate(s) for the class of Common Stock to be
converted, accompanied by the written notice and the statements prescribed
above, issue and deliver at the office of said transfer agent (or other place as
provided above) to the person for whose account such Common Stock was so
surrendered, or to such person's nominee or nominees, a certificate or
certificates for the number of shares of such other class of Common Stock to
which such holder shall be entitled as aforesaid.
Any certificate of Common Stock issued in connection with a conversion
pursuant to this paragraph (d)(5)(C) shall bear a legend substantially to the
effect of the last sentence
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of the first subparagraph of this paragraph (d)(5)(C) until such certificate
shall be transferred to the person(s) making the offer entitling a holder of
Common Stock to convert such Common Stock pursuant to this paragraph (d)(5)(C),
or the nominee or nominees of such person(s).
Any conversion pursuant to this paragraph (d)(5)(C) shall be deemed to have
been made as of the date of surrender of the Common Stock to be converted; and
the person or persons entitled to receive the Common Stock issuable upon
conversion shall be treated for all purposes as the record holder or holders of
such Common Stock on such date.
(D) The Corporation will pay any and all documentary, stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of shares of
one class of Common Stock on the conversion of shares of the other class of
Common Stock pursuant to this paragraph (d)(5); provided, however, that the
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Corporation shall not be required to pay any tax which may be payable in respect
of any registration of transfer involved in the issue or delivery of shares of
one class of Common Stock in a name other than that of the registered holder of
the other class of Common Stock converted, and no such issue or delivery shall
be made unless and until the person requesting such issue has paid to the
Corporation the amount of any such tax or has established, to the satisfaction
of the Corporation, that such tax has been paid.
(E) Concurrently with any conversion of one class of Common Stock into the
other class of Common Stock effected pursuant to paragraphs (d)(5)(A) and (B)
above and, in the case of a conversion pursuant to paragraph (d)(5)(C) above,
concurrently with the purchase of shares so converted, each share of a class of
Common Stock that is converted (i) shall be retired and canceled and shall not
be reissued and (ii) shall proportionally decrease the number of shares of
Common Stock of such class designated hereby. The Secretary of the Corporation
shall be, and hereby is, authorized and directed to file with the Secretary of
State of the State of Delaware one or more Certificates of Decrease of
Designated Shares
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to record any such decrease in designated shares of Common Stock. No
undesignated shares of Common Stock shall be designated shares of Class B Common
Stock following an automatic conversion of shares of Class B Common Stock
pursuant to paragraph (d)(5)(B) above.
(F) Immediately upon the effectiveness of this Amended and Restated
Certificate of Incorporation each share of common stock of the Corporation, par
value $.10 per share, that is issued and outstanding immediately prior to such
effectiveness, shall be changed into and reclassified as 43,000 shares of Class
B Common Stock.
Section 3. Preferred Stock.
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(a) Series and Limits of Variations between Series. Any unissued or
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treasury shares of the Preferred Stock may be issued from time to time in one or
more series for such consideration as may be fixed from time to time by the
Board of Directors and each share of a series shall be identical in all respects
with the other shares of such series, except that, if the dividends thereon are
cumulative, the date from which they shall be cumulative may differ. Before any
shares of Preferred Stock of any particular series shall be issued, a
certificate shall be filed with the Secretary of State of Delaware setting forth
the designation, rights, privileges, restrictions, and conditions to be attached
to the Preferred Stock of such series and such other matters as may be required,
and the Board of Directors shall fix and determine, and is hereby expressly
empowered to fix and determine, in the manner provided by law, the particulars
of the shares of such series (so far as not inconsistent with the provisions of
this ARTICLE FOURTH applicable to all series of Preferred Stock), including, but
not limited to, the following:
(1) the distinctive designation of such series and the number of shares
which shall constitute such series, which number may be increased (except where
otherwise provided by the Board of Directors in creating such series) or
decreased (but not below the number of shares thereof then outstanding) from
time to time by like action of the Board of Directors;
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(2) the annual rate of dividends payable on shares of such series, the
conditions upon which such dividends shall be payable and the date from which
dividends shall be cumulative in the event the Board of Directors determines
that dividends shall be cumulative;
(3) whether such series shall have voting rights, in addition to the voting
rights provided by law and, if so, the terms of such voting rights;
(4) whether such series shall have conversion privileges and, if so, the
terms and conditions of such conversion, including, but not limited to,
provision for adjustment of the conversion rate upon such events and in such
manner as the Board of Directors shall determine;
(5) whether or not the shares of such series shall be redeemable and, if
so, the terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and at
different redemption dates;
(6) whether such series shall have a sinking fund for the redemption or
purchase of shares of that series and, if so, the terms and amount of such
sinking fund;
(7) the rights of the shares of such series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of that series; and
(8) any other relative rights, preferences and limitations of such series.
Section 4. No Preemptive Rights. Except as otherwise set forth above in
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this ARTICLE FOURTH, no holder of shares of this Corporation of any class shall
be entitled, as such, as a matter of right, to subscribe for or purchase shares
of any class now or hereafter authorized, or to purchase or subscribe for
securities convertible into or exchangeable for shares of the Corporation or to
which there shall be attached
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or appertain any warrants or rights entitling the holders thereof to purchase or
subscribe for shares.
FIFTH.
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Section 1. Amendment of Bylaws by Directors. In furtherance and not in
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limitation of the powers conferred by statute, the Board of Directors is
expressly authorized to make, repeal, alter, amend and rescind the bylaws of the
Corporation.
Section 2. Amendment of Bylaws by the Stockholders. The bylaws shall not
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be made, repealed, altered, amended or rescinded by the stockholders of the
Corporation except by the vote of not less than 75 percent of the outstanding
shares of the Corporation entitled to vote thereon. Any amendment to the
Certificate of Incorporation which shall contravene any bylaw in existence on
the record date of the stockholders meeting at which such amendment is to be
voted upon by the stockholders shall require the vote of not less than 75
percent of the outstanding shares entitled to vote thereon.
SIXTH.
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Section 1. Classified Board. Effective immediately upon the issuance of
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more than 1,000 shares of Common Stock of the Corporation, the Board of
Directors (exclusive of directors to be elected by the holders of any one or
more series of Preferred Stock voting separately as a class or classes) shall be
divided into three classes, Class A, Class B, and Class C. The number of
directors in each class shall be the whole number contained in the quotient
arrived at by dividing the authorized number of directors by three, and if a
fraction is also contained in such quotient, then if such fraction is one-third,
the extra director shall be a member of Class A and if the fraction is two-
thirds, one of the extra directors shall be a member of Class A and the other
shall be a member of Class B. Each director shall serve for a term ending on
the date of the third annual meeting following the annual meeting at which such
director was elected; provided, however, that the directors first elected to
Class A shall serve for a term ending on the date of the annual meeting next
following the end of the calendar year 1996, the directors first elected to
Class B shall serve for a term ending on the date of the second annual meeting
next following the end of the
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calendar year 1996, and the directors first elected to Class C shall serve for a
term ending on the date of the third annual meeting next following the end of
the calendar year 1996. Notwithstanding the foregoing formula provisions, in
the event that, as a result of any change in the authorized number of directors,
the number of directors in any class would differ from the number allocated to
that class under the formula provided in this ARTICLE SIXTH immediately prior to
such change, the following rules shall govern:
(a) each director then serving as such shall nevertheless continue as a
director of the class of which such director is a member until the expiration of
his current term, or his prior death, resignation or removal;
(b) at each subsequent election of directors, even if the number of
directors in the class whose term of office then expires is less than the number
then allocated to that class under said formula, the number of directors then
elected for membership in that class shall not be greater than the number of
directors in that class whose term of office then expires, unless and to the
extent that the aggregate number of directors then elected plus the number of
directors in all classes then duly continuing in office does not exceed the then
authorized number of directors of the Corporation;
(c) at each subsequent election of directors, if the number of directors in
the class whose term of office then expires exceeds the number then allocated to
that class under said formula, the Board of Directors shall designate one or
more of the directorships then being elected as directors of another class or
classes in which the number of directors then serving is less than the number
then allocated to such other class or classes under said formula;
(d) in the event of the death, resignation or removal of any director who
is a member of a class in which the number of directors serving immediately
preceding the creation of such vacancy exceeded the number then allocated to
that class under said formula, the Board of Directors shall designate the
vacancy thus created as a vacancy in another class in which the number of
directors then serving is less than the
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number then allocated to such other class under said formula;
(e) In the event of any increase in the authorized number of directors, the
newly created directorships resulting from such increase shall be apportioned by
the Board of Directors to such class or classes as shall, so far as possible,
bring the composition of each of the classes into conformity with the formula in
this ARTICLE SIXTH, as it applies to the number of directors authorized
immediately following such increase; and
(f) designation of directorships or vacancies into other classes and
apportionments of newly created directorships to classes by the Board of
Directors under the foregoing items (c), (d) and (e) shall, so far as possible,
be effected so that the class whose term of office is due to expire next
following such designation or apportionment shall contain the full number of
directors then allocated to said class under said formula.
Notwithstanding any of the foregoing provisions of this ARTICLE SIXTH, each
director shall serve until his successor is elected and qualified or until his
death, resignation or removal.
Section 2. Election by Holders of Preferred Stock. During any period when
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the holders of any Preferred Stock or any one or more series thereof, voting as
a class, shall be entitled to elect a specified number of directors, by reason
of dividend arrearages or other provisions giving them the right to do so, then
and during such time as such right continues (i) the then otherwise authorized
number of directors shall be increased by such specified number of directors,
and the holders of such Preferred Stock or such series thereof, voting as a
class, shall be entitled to elect the additional directors so provided for,
pursuant to the provisions of such Preferred Stock or series; (ii) each such
additional director shall serve for such term, and have such voting powers, as
shall be stated in the provisions pertaining to such Preferred Stock or series;
and (iii) whenever the holders of any such Preferred Stock or series thereof are
divested of such rights to elect a specified number of directors, voting as a
class, pursuant to the provisions of such Preferred Stock or series, the terms
of office of all directors elected by the holders of
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such Preferred Stock or series, voting as a class pursuant to such provisions or
elected to fill any vacancies resulting from the death, resignation or removal
of directors so elected by the holders of such Preferred Stock or series, shall
forthwith terminate and the authorized number of directors shall be reduced
accordingly.
Section 3. Ballots. Elections of directors at an annual or special
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meeting of stockholders need not be by written ballot unless the bylaws of the
Corporation shall provide otherwise.
Section 4. Elimination of Certain Personal Liability of Directors. A
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director of this Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of any fiduciary duty as a
director to the fullest extent permitted by Delaware Law.
SEVENTH. After the issuance of more than 1,000 shares of Common Stock of
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the Corporation, no action shall be taken by the stockholders except at an
annual or special meeting of stockholders.
EIGHTH. The Board of Directors of the Corporation, when evaluating any
------
offer of another party to (1) make a tender or exchange offer for any equity
security of the Corporation, (2) merge or consolidate the Corporation with
another corporation, or (3) purchase or otherwise acquire all or substantially
all of the properties and assets of the Corporation, shall in connection with
the exercise of its judgment in determining what is in the best interests of the
Corporation and its stockholders, give due consideration to all relevant
factors, including without limitation the social and economic effects on the
employees, customers, suppliers and other constituents of the Corporation and
its subsidiaries and on the communities in which the Corporation and its
subsidiaries operate or are located.
NINTH. Any director may be removed at any annual or special
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stockholders' meeting upon the affirmative vote of not less than 75 percent of
the outstanding shares of voting stock of the Corporation at that time entitled
to vote thereon; provided, however, that such director may be removed only for
cause and shall receive a copy of the charges against him, delivered to him
personally or by mail at his last
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known address at least 10 days prior to the date of the stockholders' meeting;
provided further, that directors who shall have been elected by the holders of a
series or class of Preferred Stock, voting separately as a class, shall be
removed only pursuant to the provisions establishing the rights of such series
or class to elect such directors.
TENTH.
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Section 1. Amendment of Certain Articles. The provisions set forth in this
-----------------------------
ARTICLE TENTH and in ARTICLES FIFTH, SIXTH, Section 1, SEVENTH, EIGHTH, NINTH,
ELEVENTH, TWELFTH and THIRTEENTH may not be amended, altered, changed, or
repealed in any respect unless such amendment, alteration, change or repealing
is approved by the affirmative vote of not less than 75 percent of the
outstanding shares of the Corporation entitled to vote thereon; provided that
with respect to any proposed amendment, alteration or change to this Amended and
Restated Certificate of Incorporation, or repealing of any provision of this
Amended and Restated Certificate of Incorporation, which would amend, alter or
change the powers, preferences or special rights of the shares of Class A Common
Stock or Class B Common Stock so as to affect them adversely, the affirmative
vote of not less than 75 percent of the outstanding shares affected by the
proposed amendment, voting as a separate class, shall be required in addition to
the vote otherwise required pursuant to this ARTICLE TENTH; and provided,
--------
further, that with respect to any amendment, alteration or change to, or
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repealing of, any provision of ARTICLE ELEVENTH, the affirmative vote of not
less than 75 percent of the outstanding shares of the Corporation entitled to
vote thereon, other than shares held by the Interested Person (if any) seeking
or proposing to effect any transaction involving the Corporation or any
subsidiary of the Corporation, shall be required in addition to the vote
otherwise required pursuant to this ARTICLE TENTH.
Section 2. Amendments Generally. Subject to the provisions of Section 1
--------------------
of this ARTICLE TENTH, the Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Amended and Restated
Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred on stockholders herein are granted subject to
this reservation.
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ELEVENTH.
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Section 1. Vote Required for Certain Business Combinations. The
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affirmative vote of not less than 75 percent of the outstanding shares of
"Voting Stock" (as hereinafter defined) held by stockholders other than the
"Interested Person" (as hereinafter defined) seeking to effect a "Business
Combination" (as hereinafter defined) shall be required for the approval or
authorization of any Business Combination with any Interested Person; provided
--------
that the provisions of this ARTICLE ELEVENTH shall not apply to any Business
Combination, and such Business Combination shall require only such affirmative
vote, if any, as is required by law or otherwise, if such Business Combination
shall have been approved by a majority (whether such approval is made prior or
subsequent to the acquisition of Beneficial Ownership of the Voting Stock that
caused the Interested Person to become an Interested Person) of the Continuing
Directors (as hereinafter defined).
Section 2. Definitions. Certain words and terms as used in this ARTICLE
-----------
ELEVENTH shall have the meanings given to them by the definitions and
descriptions in this Section.
(a) Business Combination. The term "Business Combination" shall mean (a)
--------------------
any merger or consolidation of the Corporation or a subsidiary of the
Corporation with or into an Interested Person, (b) any sale, lease, exchange,
transfer or other disposition, including without limitation, a mortgage or any
other security device, of all or any "Substantial Part" (as hereinafter defined)
of the assets either of the Corporation (including without limitation, any
voting securities of a subsidiary) or of a subsidiary of the Corporation to an
Interested Person, (c) any merger or consolidation of an Interested Person with
or into the Corporation or a subsidiary of the Corporation, (d) any sale, lease,
exchange, transfer or other disposition, including without limitation, a
mortgage or other security device, of all or any Substantial Part of the assets
of an Interested Person to the Corporation or a subsidiary of the Corporation,
(e) the issuance or transfer by the Corporation or any subsidiary of the
Corporation of any securities of the Corporation or a subsidiary of the
Corporation to an Interested Person, (f) any reclassification of securities,
recapitalization or other comparable transaction
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involving the Corporation that would have the effect of increasing the voting
power of any Interested Person with respect to Voting Stock of the Corporation,
and (g) any agreement, contract or other arrangement providing for any of the
transactions described in this definition of Business Combination.
(b) Interested Person. The term "Interested Person" shall mean and include
-----------------
any individual, corporation, partnership or other person or entity which,
together with its "Affiliates" and "Associates" (as defined in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934 as in
effect at the date of the adoption of this ARTICLE ELEVENTH by the stockholders
of the Corporation), "Beneficially Owns" (as defined in Rule 13d-3 of the
General Rules and Regulations under the Securities Exchange Act of 1934 as in
effect at the date of the adoption of this ARTICLE ELEVENTH by the stockholders
of the Corporation) in the aggregate five percent or more of the outstanding
Voting Stock of the Corporation, and any Affiliate or Associate of any such
individual, corporation, partnership or other person or entity. Without
limitation, any share of Voting Stock of the Corporation that any Interested
Person has the right to acquire at any time (notwithstanding that Rule 13d-3
deems such shares to be beneficially owned only if such right may be exercised
within 60 days) pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise, shall be deemed to be Beneficially
Owned by the Interested Person and to be outstanding for purposes of this
definition. An Interested Person shall be deemed to have acquired a share of
the Voting Stock of the Corporation at the time when such Interested Person
became the Beneficial Owner thereof.
(c) Voting Stock. The term "Voting Stock" shall mean all of the
------------
outstanding shares of Common Stock of the Corporation and any outstanding shares
of Preferred Stock entitled to vote on each matter on which the holders of
record of Common Stock shall be entitled to vote, and each reference to a
proportion of shares of Voting Stock shall refer to such proportion of the votes
entitled to be cast by such shares.
(d) Substantial Part. The term "Substantial Part" shall mean more than 20
----------------
percent of the fair market value as determined by two-thirds of the Continuing
Directors of the total consolidated assets
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of the Corporation and its subsidiaries taken as a whole as of the end of its
most recent fiscal year ended prior to the time the determination is being made.
(e) Continuing Director. The term "Continuing Director" shall mean a
-------------------
Director who was a member of the Board of Directors of the Corporation
immediately prior to the time that the Interested Person involved in a Business
Combination became an Interested Person, or a Director who was elected or
appointed to fill a vacancy after the date the Interested Person became an
Interested Person by a majority of the then-current Continuing Directors;
provided, that with respect to The Limited, the term "Continuing Director" shall
--------
mean a Director who was a member of the Board of Directors of the Corporation
immediately following the consummation of the initial public offering of the
Corporation's Class A Common Stock in a transaction registered under the
Securities Act of 1933, as amended (the "IPO"), or a Director who was elected or
appointed to fill a vacancy after the IPO by a majority of the then-current
Continuing Directors.
TWELFTH.
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Section 1. In anticipation that the Corporation will cease to be a wholly
owned subsidiary of The Limited, but that The Limited will remain a stockholder
of the Corporation, and in anticipation that the Corporation and The Limited may
engage in the same or similar activities or lines of business and have an
interest in the same areas of corporate opportunities, and in recognition of (i)
the benefits to be derived by the Corporation through its continued contractual,
corporate and business relations with The Limited (including service of officers
and directors of The Limited as officers and directors of the Corporation) and
(ii) the difficulties attendant to any director, who desires and endeavors fully
to satisfy such director's fiduciary duties, in determining the full scope of
such duties in any particular situation, the provisions of this ARTICLE TWELFTH
are set forth to regulate, define and guide the conduct of certain affairs of
the Corporation as they may involve The Limited and its officers and directors,
and the powers, rights, duties and liabilities of the Corporation and its
officers, directors and stockholders in connection therewith.
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Section 2. Except as The Limited may otherwise agree in writing,
(a) The Limited shall not have a duty to refrain from engaging directly or
indirectly in the same or similar business activities or lines of business as
the Corporation, and
(b) neither The Limited nor any officer or director thereof shall be liable
to the Corporation or its stockholders for breach of any fiduciary duty by
reason of any such activities of The Limited or of such person's participation
therein.
In the event that The Limited acquires knowledge of a potential transaction or
matter that may be a corporate opportunity for both The Limited and the
Corporation, The Limited shall have no duty to communicate or offer such
corporate opportunity to the Corporation and shall not be liable to the
Corporation or its stockholders for breach of any fiduciary duty as a
stockholder of the Corporation or controlling person of a stockholder by reason
of the fact that The Limited pursues or acquires such corporate opportunity for
itself, directs such corporate opportunity to another person or entity, or does
not communicate information regarding, or offer, such corporate opportunity to
the Corporation.
Section 3. In the event that a director, officer or employee of the
Corporation who is also a director, officer or employee of The Limited acquires
knowledge of a potential transaction or matter that may be a corporate
opportunity for the Corporation and The Limited (whether such potential
transaction or matter is proposed by a third-party or is conceived of by such
director, officer or employee of the Corporation), such director, officer or
employee shall be entitled to offer such corporate opportunity to the
Corporation or The Limited as such director, officer or employee deems
appropriate under the circumstances in his sole discretion, and no such
director, officer or employee shall be liable to the Corporation or its
stockholders for breach of any fiduciary duty or duty of loyalty or failure to
act in (or not opposed to) the best interests of the Corporation or the
derivation of any improper personal benefit by reason of the fact that (i) such
director, officer or employee offered such corporate opportunity to The Limited
(rather than the Corporation) or did not communicate information
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regarding such corporate opportunity to the Corporation or (ii) The Limited
pursues or acquires such corporate opportunity for itself or directs such
corporate opportunity to another person or does not communicate information
regarding such corporate opportunity to the Corporation.
Section 4. Any person or entity purchasing or otherwise acquiring any
interest in any shares of capital stock of the Corporation shall be deemed to
have notice of and to have consented to the provisions of this ARTICLE TWELFTH.
Section 5. For purposes of this ARTICLE TWELFTH and ARTICLE THIRTEENTH
only, (i) the term "Corporation" shall mean the Corporation and all
corporations, partnerships, joint ventures, associations and other entities in
which the Corporation beneficially owns (directly or indirectly) fifty percent
or more of the outstanding voting stock, voting power or similar voting
interests, and (ii) the term "The Limited" shall mean The Limited and all
corporations, partnerships, joint ventures, associations and other entities
(other than the Corporation, defined in accordance with clause (i) of this
Section 5) in which The Limited beneficially owns (directly or indirectly) fifty
percent or more of the outstanding voting stock, voting power or similar voting
interests.
Section 6. Notwithstanding anything in this Certificate of Incorporation
to the contrary, the foregoing provisions of this ARTICLE TWELFTH shall expire
on the date that The Limited ceases to own beneficially Common Stock
representing at least 20% of the number of outstanding shares of Common Stock of
the Corporation and no person who is a director or officer of the Corporation is
also a director or officer of The Limited. Neither the alteration, amendment,
change or repeal of any provision of this ARTICLE TWELFTH nor the adoption of
any provision of this Amended and Restated Certificate of Incorporation
inconsistent with any provision of this ARTICLE TWELFTH shall eliminate or
reduce the effect of this ARTICLE TWELFTH in respect of any matter occurring, or
any cause of action, suit or claim that, but for this ARTICLE TWELFTH, would
accrue or arise, prior to such alteration, amendment, repeal or adoption.
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Section 7. The provisions of this ARTICLE TWELFTH are in addition to the
provisions of ARTICLE SIXTH, Section 5, and ARTICLE THIRTEENTH.
THIRTEENTH.
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Section 1. No contract, agreement, arrangement or transaction (or any
amendment, modification or termination thereof) between the Corporation and The
Limited or any Related Entity (as defined below) or between the Corporation and
one or more of the directors or officers of the Corporation, The Limited or any
Related Entity, shall be void or voidable solely for the reason that The
Limited, any Related Entity or any one or more of the officers or directors of
the Corporation, The Limited or any Related Entity are parties thereto, or
solely because any such directors or officers are present at or participate in
the meeting of the Board of Directors or committee thereof which authorizes the
contract, agreement, arrangement, transaction, amendment, modification or
termination or solely because his or their votes are counted for such purpose,
but any such contract, agreement, arrangement or transaction (or any amendment,
modification or termination thereof) shall be governed by the provisions of this
Amended and Restated Certificate of Incorporation, the Corporation's Bylaws,
Delaware Law and other applicable law. For purposes of this ARTICLE THIRTEENTH,
(i) the term "Related Entities" means one or more directors of this Corporation,
or one or more corporations, partnerships, associations or other organizations
in which one or more of its directors have a direct or indirect financial
interest and (ii) the terms the "Corporation" and "The Limited" have the
meanings set forth in ARTICLE TWELFTH, Section 5.
Section 2. Directors of the Corporation who are also directors or officers
of The Limited or any Related Entity may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee that
authorizes or approves any such contract, agreement, arrangement or transaction
(or amendment, modification or termination thereof). Outstanding shares of
Common Stock owned by The Limited and any Related Entities may be counted in
determining the presence of a quorum at a meeting of stockholders that
authorizes or approves any such contract, agreement, arrangement or transaction
(or amendment, modification or termination thereof).
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Section 3. Neither The Limited nor any officer or director thereof or
Related Entity shall be liable to the Corporation or its stockholders for breach
of any fiduciary duty or duty of loyalty or failure to act in (or not opposed
to) the best interests of the Corporation or the derivation of any improper
personal benefit by reason of the fact that The Limited or an officer of
director thereof or such Related Entity in good faith takes any action or
exercises any rights or gives or withholds any consent in connection with any
agreement or contract between The Limited or such Related Entity and the
Corporation. No vote cast or other action taken by any person who is an
officer, director or other representative of The Limited or such Related Entity,
which vote is cast or action is taken by such person in his capacity as a
director of this Corporation, shall constitute an action of or the exercise of a
right by or a consent of The Limited or such Related Entity for the purpose of
any such agreement or contract.
Section 4. Any person or entity purchasing or otherwise acquiring any
interest in any shares of capital stock of the Corporation shall be deemed to
have notice of and to have consented to the provisions of this ARTICLE
THIRTEENTH.
Section 5. For purposes of this ARTICLE THIRTEENTH, any contract,
agreement, arrangement or transaction with any corporation, partnership, joint
venture, association or other entity in which the Corporation beneficially owns
(directly or indirectly) fifty percent or more of the outstanding voting stock,
voting power or similar voting interests, or with any officer or director
thereof, shall be deemed to be a contract, agreement, arrangement or transaction
with the Corporation.
Section 6. Neither the alteration, amendment, change or repeal of any
provision of this ARTICLE THIRTEENTH nor the adoption of any provision
inconsistent with any provision of this ARTICLE THIRTEENTH shall eliminate or
reduce the effect of this ARTICLE THIRTEENTH in respect of any matter occurring,
or any cause of action, suit or claim that, but for this ARTICLE THIRTEENTH,
would accrue or arise, prior to such alteration, amendment, change, repeal or
adoption.
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Section 7. The provisions of this ARTICLE THIRTEENTH are in addition to
the provisions of ARTICLE SIXTH, Section 5, and ARTICLE TWELFTH.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation,
having been duly adopted by the written consent of the sole stockholder of the
Corporation in accordance with the provisions of Sections 228, 242 and 245 of
the General Corporation Law of the State of Delaware, has been executed this
27th day of August 1996.
ABERCROMBIE & FITCH CO.
By: /s/ Samuel P. Fried
-----------------------
Name: Samuel P. Fried
Title: Secretary
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