Item 6. Indemnification of Directors and Officers.
Delaware General Corporation Law
Section 145 of the Delaware General Corporation Law (“DGCL”) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, by reason of the fact that the person is or was a director or officer of the corporation or is or was serving at the corporation’s request as a director, officer, employee or agent of another entity, against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, such person had no reasonable cause to believe the person’s conduct was unlawful. In the case of an action by or in the right of the corporation, however, such indemnification may only apply to expenses actually and reasonably incurred in connection with the defense or settlement of the action or suit and no such indemnification may be made in respect of any claim, issue or matter as to which that person shall have been adjudged to be liable to the corporation unless and only to the extent that an appropriate court determines that such person is fairly and reasonably entitled to indemnification for such expenses the court deems proper. To the extent that such person has been successful on the merits or otherwise in defending any action, suit or proceeding referred to above or any claim, issue or matter therein, the corporation must indemnify such person against the expenses actually and reasonably incurred by such person in connection therewith.
Amended and Restated Bylaws
Article V of the Registrant’s Amended and Restated Bylaws provides as follows:
Section 5.01.
Indemnification
. (a) The corporation shall indemnify and hold harmless any person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in, any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he, his testator, or intestate is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust or other enterprise, or as a member of any committee or similar body, to the fullest extent permitted by the laws of Delaware as they may exist from time to time. The right to indemnification conferred in this Article V shall also include the right to be paid by the corporation the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent permitted by the laws of Delaware as they may exist from time to time.
(b) The corporation may, by action of its Board of Directors, provide indemnification to such of the employees and agents of the corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by the laws of Delaware as they may exist from time to time.
Section 5.02.
Insurance
. The proper officers of the corporation, without further authorization by the Board of Directors, may in their discretion purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent for another corporation, partnership, joint venture, trust or other enterprise, against any liability.
Section 5.03.
ERISA
. To assure indemnification under this Article V of all such persons who are or were “fiduciaries” of an employee benefit plan governed by the Act of Congress entitled “Employee Retirement Income Security Act of 1974”, as amended from time to time, the provisions of this Article V shall, for the purposes hereof, be interpreted as follows: an “other enterprise” shall be deemed to include an employee benefit plan; the corporation shall be deemed to have requested a person to serve as an employee of an employee benefit plan where the performance by such person of his duties to the corporation also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to said Act of Congress shall be deemed “fines”; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose reasonably believed by such person to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the corporation.
Section 5.04.
Contractual Nature
. The foregoing provisions of this Article V shall be deemed to be a contract between the corporation and each director and officer who serves in such capacity at any time while this Article V is in effect. Neither any repeal or modification of this Article V or, to the fullest extent permitted by the laws of Delaware, any repeal or modification of laws, shall affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in whole or in part upon any such state of facts.
Section 5.05.
Construction
. For the purposes of this Article V, references to “the corporation” include in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director or officer of such constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise or as a member of any committee or similar body shall stand in the same position under the provisions of this Article V with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
Amended and Restated Certificate of Incorporation
Section 4 of Article SIXTH of the Registrant’s Amended and Restated Certificate of Incorporation provides as follows:
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.
Abercrombie & Fitch Co. 2016 Long-Term Incentive Plan for Associates
Section 3(c) of the Plan provides that the members of the Compensation and Organization Committee of the Board of Directors of the Registrant (the “Committee”), any person acting pursuant to authority delegated by the Committee, and any officer or associate of the Registrant or a subsidiary or affiliate of the Registrant acting at the direction or on behalf of the Committee or a delegee shall not be personally liable for any action or determination taken or made in good faith with respect to the Plan, and shall, to the extent permitted by law, be fully indemnified and protected by the Registrant with respect to any such action or determination.
Indemnification Agreements
The Registrant has entered into an indemnification agreement with each of the Registrant’s directors and executive officers that provide for, among other things, the indemnification of such persons by the Registrant to the fullest extent permitted or required by the laws of the State of Delaware; the advancement to such persons by the Registrant of certain expenses; related notification and determination procedures and presumptions of entitlement; and other related matters.
Executive Agreements
The Registrant has entered into executive agreements with Stacia Andersen, Robert E. Bostrom, Joanne C. Crevoiserat and Fran Horowitz, each of whom is an executive officer of the Registrant. The executive agreements include within their respective terms a provision requiring the Registrant to indemnify, defend, and hold the executive officer harmless to the maximum extent permitted by law and the Registrant’s Amended and Restated Bylaws against all judgments, fines, amounts paid in settlement and all reasonable expenses, including attorneys’ fees incurred by the executive officer in connection with the defense of or as a result of any action or proceeding (or any appeal from any action or proceeding) in which the executive officer is made or is threatened to be made a party by reason of the fact that the executive officer is or was an officer or director of the Registrant. Subject to the terms of the Registrant’s directors and officers indemnification policies then in effect, the Registrant also acknowledges in each executive agreement that the executive officer will be covered and insured up to the full limits provided by all directors’ and officers’ insurance which the Registrant then maintains to indemnify its directors and officers.
Directors and Officers Insurance Policies
The Registrant maintains insurance policies providing for indemnification of directors and officers and for reimbursement to the Registrant for monies which the Registrant may pay as indemnity to any director or officer, subject to the conditions, limitations and exclusions of the policies and specified retention provisions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed with or incorporated by reference into this Registration Statement:
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4.1
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Amended and Restated Certificate of Incorporation of Abercrombie & Fitch Co. as filed with the Delaware Secretary of State on August 27, 1996, incorporated herein by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended November 2, 1996 (File No. 001-12107).
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4.2
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Certificate of Designation of Series A Participating Cumulative Preferred Stock of Abercrombie & Fitch Co. as filed with the Delaware Secretary of State on July 21, 1998, incorporated herein by reference to Exhibit 3.2 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended January 30, 1999 (File No. 001-12107).
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4.3
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Certificate of Decrease of Shares Designated as Class B Common Stock as filed with the Delaware Secretary of State on July 30, 1999, incorporated herein by reference to Exhibit 3.3 to the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended July 31, 1999 (File No. 001-12107).
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4.4
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Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Abercrombie & Fitch Co., as filed with the Delaware Secretary of State on June 16, 2011, incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K dated and filed on June 17, 2011 (File No. 001-12107).
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4.5
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Amended and Restated Certificate of Incorporation of Abercrombie & Fitch Co., reflecting amendments through the date of this Registration Statement, incorporated herein by reference to Exhibit 3.2 to the
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Registrant’s Quarterly Report on Form 10‑Q for the quarterly period ended July 30, 2011 (File No. 001-12107). [
This document represents the Amended and Restated Certificate of Incorporation of Abercrombie & Fitch Co. in compiled form incorporating all amendments. This compiled document has not been filed with the Delaware Secretary of State
.]
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4.6
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Certificate regarding Approval of Amendment to Section 2.03 of Amended and Restated Bylaws of Abercrombie & Fitch Co. by Stockholders of Abercrombie & Fitch Co. at Annual Meeting of Stockholders held on June 10, 2009, incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K dated and filed June 16, 2009 (File No. 001-12107).
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4.7
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Certificate regarding Approval of Addition of New Article IX of Amended and Restated Bylaws by Board of Directors of Abercrombie & Fitch Co. on June 10, 2009, incorporated herein by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K dated and filed June 16, 2009 (File No. 001-12107).
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4.8
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Certificate regarding Approval of Amendments to Sections 1.09 and 2.04 of Amended and Restated Bylaws of Abercrombie & Fitch Co. by Board of Directors of Abercrombie & Fitch Co. on November 15, 2011, incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8‑K dated and filed November 21, 2011 (File No. 001‑12107).
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4.9
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Amended and Restated Bylaws of Abercrombie & Fitch Co. reflecting amendments through the date of this Registration Statement, incorporated herein by reference to Exhibit 3.2 to the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended October 29, 2011 (File No. 001-12107). [
This document represents the Amended and Restated Bylaws of Abercrombie & Fitch Co. in compiled form incorporating all amendments.
]
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4.10
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Abercrombie & Fitch Co. 2016 Long-Term Incentive Plan for Associates.
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5.1
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Opinion of Vorys, Sater, Seymour and Pease LLP regarding the validity of securities being registered.
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
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23.2
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Consent of Vorys, Sater, Seymour and Pease LLP (included in Exhibit 5.1).
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24.1
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Powers of Attorney of Directors and Certain Executive Officers of Abercrombie & Fitch Co.
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