Exhibit 3.1
FORM OF
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:
ABERCROMBIE & FITCH CO.
SECOND. The address of the registered office of the
Corporation in the 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 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.
Section 1. Capital Stock. (a) The total number of shares
of stock which the Corporation shall have authority to issue is _______,
consisting of _______ shares of Common Stock, par value $.01 per share (the
"Common Stock"), and _______ 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.
(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 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, 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 ______ shares of Common Stock
of the Corporation, ______ shares are initially designated as shares of Class
A Common Stock and ______ 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) 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, 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 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 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
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 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 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, however, that if
the timing or nature of the effectiveness of an automatic
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 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;
(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 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 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.
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 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 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 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 $1.00 per share, that is issued and
outstanding immediately prior to such effectiveness, shall be
changed into and reclassified as _____ shares of Class B Common
Stock.
Section 3. Preferred Stock.
(a) Series and Limits of Variations between Series. Any
unissued or 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;
(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 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 or appertain any warrants or
rights entitling the holders thereof to purchase or subscribe for shares.
FIFTH.
Section 1. Amendment of Bylaws by Directors. In
furtherance and not in 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 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.
Section 1. Classified Board. Effective immediately upon
the issuance of 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 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 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 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 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 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 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 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
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 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.
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 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.
ELEVENTH.
Section 1. Vote Required for Certain Business Combinations.
The 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.
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 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 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.
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.
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
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.
Section 7. The provisions of this ARTICLE TWELFTH are in
addition to the provisions of ARTICLE SIXTH, Section 5, and ARTICLE THIRTEENTH.
THIRTEENTH.
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).
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.
Section 7. The provisions of this ARTICLE THIRTEENTH are in
addition to the provisions of ARTICLE SIXTH, Section 5, and ARTICLE TWELFTH.
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 th day of July 1996.
ABERCROMBIE & FITCH CO.
By:____________________________________
Name:
Title: