As filed with the Securities and Exchange Commission on April 7, 1998
Registration No. 333-46423
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 2 to
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ABERCROMBIE & FITCH CO.
(Exact name of Registrant as specified in its charter)
Delaware 5651 31-1469076
- ------------------------------ ------------------------- -------------------
(State or jurisdiction (Primary Standard (I.R.S. Employer
of incorporation Industrial Classification Identification No.)
or organization) Code Number)
Four Limited Parkway East
Reynoldsburg, OH 43068
(614) 577-6500
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Seth R. Johnson
Four Limited Parkway East
Reynoldsburg, OH 43068
(614) 577-6500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
David L. Caplan, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
Approximate date of commencement of proposed sale to the public:
As promptly as practicable after this Registration Statement becomes effective
and the other conditions to the commencement of the Exchange Offer described
herein have been satisfied or waived.
If any of the securities being registered on this form are to be
offered in connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
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EXPLANATORY NOTE
This Amendment No. 2 to the Form S-4 Registration Statement is
a Part II filing solely to file exhibits. Accordingly, an Offering
Circular-Prospectus has been omitted.
PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") empowers a Delaware corporation to indemnify any persons
who are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors against expenses (including
attorneys' fees) in connection with the defense or settlement of an action by or
in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director actually and reasonably incurred.
In accordance with the DGCL, A&F's Certificate of Incorporation
contains a provision to limit the personal liability of the directors of A&F for
violations of their fiduciary duty. This provision eliminates each director's
liability to A&F or its stockholders for monetary damages except (i) for any
breach of the director's duty of loyalty to A&F or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions, or (iv) for any transaction from which a director
derived an improper personal benefit. The effect of this provision is to
eliminate the personal liability of directors for monetary damages for actions
involving a breach of their fiduciary duty of care, including any such actions
involving gross negligence.
Article V of A&F's Bylaws provides for indemnification of the
officers and directors of A&F to the full extent permitted by applicable law.
Item 21. Exhibits and Financial Statement Schedules.
5.1 Form of Opinion of Davis Polk & Wardwell regarding the
legality of the securities being registered.
8.1 Form of Opinion of Davis Polk & Wardwell regarding certain
tax matters.**
10.1 Form of Tax Disaffiliation Agreement between The Limited,
Inc. and Abercrombie & Fitch Co.
10.2 Services Agreement by and between Abercrombie & Fitch Co.
and The Limited, Inc. dated September 27, 1996,
incorporated by reference to Exhibit 10.2 to the A&F's
Quarterly Report on Form 10-Q for the quarter ended
November 2, 1996*
10.3 Form of Amended and Restated Services Agreement
10.4 Shared Facilities Agreement, dated September 27, 1996, by
and between Abercrombie & Fitch Co. and The Limited, Inc.,
incorporated by reference to Exhibit 10.3 to A&F's
Quarterly Report on Form 10-Q for the quarter ended
November 2, 1996*
10.5 Sublease Agreement by and between Victoria's Secret Stores,
Inc. and Abercrombie & Fitch Co., Inc., dated June 1, 1995,
incorporated by reference to Exhibit 10.3 to A&F's
Registration Statement on Form S-1 (Registration No.
333-8231)*
10.6 Amendment No. 1 to the Sublease Agreement
10.7 Corporate Agreement by and between Abercrombie & Fitch Co.
and The Limited, Inc., dated October 1, 1996, incorporated
by reference to Exhibit 10.5 to A&F's Quarterly Report on
Form 10-Q for the quarter ended November 2, 1996*
23.1 Consent of independent accountants with respect to The
Limited, Inc.
23.2 Consent of independent accountants with respect to
Abercrombie & Fitch Co.
24.1 Powers of Attorney*
99.01 Letter of Transmittal
99.02 Notice of Guaranteed Delivery
99.03 Letter from the Dealer Managers to Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees
99.04 Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and other Nominees
99.05 Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 (included in the Letter of
Transmittal filed as Exhibit 99.01 hereto)
99.06 Letter to Participants in the Savings and Retirement Plan
of The Limited, Inc.
99.07 Notice to Participants in the Savings and Retirement Plan
of The Limited, Inc.
99.08 Questions and Answers on Savings and Retirement Plan Tender
Rights and Procedures
99.09 Notice to Participants in the Stock Purchase Plan of The
Limited, Inc.
99.10 Consent of Mr. George Foos to be named as a future director
of Abercrombie & Fitch Co. in this Form S-4*
99.11 Consent of Mr. John A. Golden to be named as a future
director of Abercrombie & Fitch Co. in this Form S-4*
99.12 Consent of Mr. Seth R. Johnson to be named as a future
director of Abercrombie & Fitch Co. in this Form S-4*
99.13 Consent of Mr. John W. Kessler to be named as a future
director of Abercrombie & Fitch Co. in this Form S-4*
99.14 Consent of Mr. Sam N. Shahid, Jr. to be named as a future
director of Abercrombie & Fitch Co. in this Form S-4*
99.15 Consent of Mr. Douglas L. Williams to be named as a future
director of Abercrombie & Fitch Co. in this Form S-4*
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* Previously filed.
** To be filed by amendment.
Item 22. Undertakings.
In so far as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"), may be permitted to
directors, officers, and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer,
or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer, or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the prospectus
pursuant to Item 4, 10(b), 11 or 13 of this form, within one business day of
receipt of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the registration statement
through the date of responding to the request. The undersigned Registrant hereby
further undertakes to supply by means of a post-effective amendment all
information concerning a transaction, and the company being acquired involved
therein, that was not the subject of or included in the registration statement
when it became effective.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date
of the registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value
of securities offered would not exceed that which
was registered) and any deviation from the low or
high end of the estimated maximum offering range
may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price
represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
The undersigned Registrant hereby undertake that,
for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide thereof.
The undersigned Registrant hereby undertakes to
deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual
report, to security holders that is incorporated by reference in
the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act;
and, where interim financial information required to be presented
by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person
to whom the prospectus is sent or given, the latest quarterly
report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED PERSON, THEREUNTO DULY AUTHORIZED, IN THE CITY OF
REYNOLDSBURG, STATE OF OHIO, ON APRIL 7, 1998.
ABERCROMBIE & FITCH CO.
By: /s/ Kenneth B. Gilman
------------------------------------
Name: Kenneth B. Gilman
Title: Vice Chairman of the Board
of Directors
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON APRIL 7, 1998.
Signature Title
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* Chairman of the Board of Directors
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Leslie H. Wexner
/s/ Kenneth B. Gilman Vice Chairman of the Board of Directors
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Kenneth B. Gilman
* Chief Executive Officer, President and
- ---------------------------- Director (Principal Executive Officer)
Michael S. Jeffries
* Vice President and Chief Financial Officer
- ---------------------------- (Principal Financial and Accounting
Seth R. Johnson Officer)
* Director
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Roger D. Blackwell
* Director
- ----------------------------
E. Gordon Gee
* Director
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Donald B. Shackelford
*By: /s/ Kenneth B. Gilman
------------------------
Kenneth B. Gilman
as Attorney-in-Fact
EXHIBIT INDEX
Exhibit No. Description Page No.
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5.1 Form of Opinion of Davis Polk & Wardwell regarding the
legality of the securities being registered.
8.1 Form of Opinion of Davis Polk & Wardwell regarding certain
tax matters.**
10.1 Form of Tax Disaffiliation Agreement between The Limited,
Inc. and Abercrombie & Fitch Co.
10.2 Services Agreement by and between Abercrombie & Fitch Co. and
The Limited, Inc. dated September 27, 1996, incorporated by
reference to Exhibit 10.2 to the A&F's Quarterly
Report on Form 10-Q for the quarter ended November 2, 1996*
10.3 Form of Amended and Restated Services Agreement
10.4 Shared Facilities Agreement, dated September 27, 1996, by and
between Abercrombie & Fitch Co. and The Limited, Inc.,
incorporated by reference to Exhibit 10.3 to A&F's Quarterly
Report on Form 10-Q for the quarter ended November 2, 1996*
10.5 Sublease Agreement by and between Victoria's Secret Stores,
Inc. and Abercrombie & Fitch Co., Inc., dated June 1, 1995,
incorporated by reference to Exhibit 10.3 to A&F's
Registration Statement on Form S-1 (Registration No.
333-8231)*
10.6 Amendment No. 1 to the Sublease Agreement
10.7 Corporate Agreement by and between Abercrombie & Fitch Co.
and The Limited, Inc., dated October 1, 1996, incorporated by
reference to Exhibit 10.5 to A&F's Quarterly Report on Form
10-Q for the quarter ended November 2, 1996*
23.1 Consent of independent accountants with respect to The
Limited, Inc.
23.2 Consent of independent accountants with respect to
Abercrombie & Fitch Co.
24.1 Powers of Attorney*
99.01 Letter of Transmittal
99.02 Notice of Guaranteed Delivery
99.03 Letter from the Dealer Managers to Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees
99.04 Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and other Nominees
99.05 Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 (included in the Letter of
Transmittal filed as Exhibit 99.01 hereto)
99.06 Letter to Participants in the Savings and Retirement Plan of
The Limited, Inc.
99.07 Notice to Participants in the Savings and Retirement Plan of
The Limited, Inc.
99.08 Questions and Answers on Savings and Retirement Plan Tender
Rights and Procedures
99.09 Notice to Participants in the Stock Purchase Plan of The
Limited, Inc.
99.10 Consent of Mr. George Foos to be named as a future director
of Abercrombie & Fitch Co. in this Form S-4*
99.11 Consent of Mr. John A. Golden to be named as a future
director of Abercrombie & Fitch Co. in this Form S-4*
99.12 Consent of Mr. Seth R. Johnson to be named as a future
director of Abercrombie & Fitch Co. in this Form S-4*
99.13 Consent of Mr. John W. Kessler to be named as a future
director of Abercrombie & Fitch Co. in this Form S-4*
99.14 Consent of Mr. Sam N. Shahid, Jr. to be named as a future
director of Abercrombie & Fitch Co. in this Form S-4*
99.15 Consent of Mr. Douglas L. Williams to be named as a future
director of Abercrombie & Fitch Co. in this Form S-4*
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* Previously filed.
** To be filed by amendment.
EXHIBIT 5.1
_____________, 1998
Abercrombie & Fitch Co.
Four Limited Parkway
Reynoldsburg, OH 43068
Ladies and Gentlemen:
We have acted as special counsel to Abercrombie & Fitch Co. (the
"Company") in connection with the Company's Registration Statement on Form S-4,
Registration No. 333-46423 (the "Registration Statement"), filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, for the registration of 43,600,000 shares of the Company's Class A
common stock, $.01 par value per share (the "Shares").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary for the purposes of rendering this opinion, including the Company's
Amended and Restated Certificate of Incorporation.
On the basis of the foregoing and assuming the due execution and
delivery of certificates representing the Shares, we are of the opinion that the
Shares have been duly authorized and, when issued and delivered in accordance
with the terms of the Exchange Offer referred to in the Offering
Circular-Prospectus that is part of the Registration Statement, will be validly
issued, fully paid and non-assessable.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and the General Corporation Law of the
State of Delaware.
We hereby consent to the filing of this opinion as Exhibit 5.1 to
the Registration Statement and to the reference to our name under the caption
"Legal Matters" in the related Offering Circular-Prospectus.
Very truly yours,
EXHIBIT 10.1
FORM OF
TAX DISAFFILIATION AGREEMENT
between
The LIMITED, INC.,
on behalf of itself
and the members
of The LIMITED GROUP
and
ABERCROMBIE & FITCH CO.
on behalf of itself
and the members
of THE ABERCROMBIE & FITCH GROUP
TAX DISAFFILIATION AGREEMENT
This Agreement is entered into as of the [ ] day of [ ], 1998 between The
Limited Inc. ("The Limited"), a Delaware corporation, on behalf of itself and
the members of The Limited Group, and Abercrombie & Fitch Co. ("Abercrombie &
Fitch"), a Delaware corporation, on behalf of itself and the members of the
Abercrombie & Fitch Group.
W I T N E S S E T H:
WHEREAS, pursuant to the tax laws of various jurisdictions, certain
members of the Abercrombie & Fitch Group, as defined below, presently file
certain tax returns on an affiliated, consolidated, combined, unitary, fiscal
unit or other group basis (including as permitted by Section 1501 of the
Internal Revenue Code of 1986, as amended (the "Code")) with certain members of
The Limited Group, as defined below (each such group, a "Consolidated Group");
WHEREAS, The Limited and Abercrombie & Fitch intend to distribute to its
shareholders all of the Abercrombie & Fitch common stock held by The Limited
(the "Distribution");
WHEREAS, The Limited and Abercrombie & Fitch desire to set forth their
agreement on the rights and obligations of The Limited, Abercrombie & Fitch and
the members of The Limited Group and the Abercrombie & Fitch Group,
respectively, with respect to the handling and allocation of federal, state and
local taxes incurred in taxable periods beginning prior to the Distribution
Date, as defined below, and various other tax matters;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties agree as follows:
1. Definitions
(a) As used in this Agreement:
"Abercrombie & Fitch Combined State Tax Liability" shall mean, with
respect to any taxable year and any jurisdiction, an amount of Combined State
Taxes determined in accordance with the principles set forth in the definition
of Abercrombie & Fitch Federal Tax Liability; provided, however, that (i) such
amount shall also include any actual income, franchise or similar state or local
tax liability (a "State Liability") owed in a jurisdiction (a "Combined
Jurisdiction") in which a member of the Abercrombie & Fitch Group files tax
returns with a member of The Limited Group, on a consolidated, combined or
unitary basis, to the extent such liability exceeds the liability that would
have been owed had no member of the Abercrombie & Fitch Group been included in
such returns, except to the extent attributable to the recognition of The
Limited's excess loss account with respect to the stock of Abercrombie & Fitch
as a result of the Distribution, and (ii) such amount shall be reduced to the
extent that, in any Combined Jurisdiction, the State Liability of The Limited
Consolidated Group is less than the liability that would have been owed had no
member of the Abercrombie & Fitch Group been included in the returns of such
Combined Jurisdiction.
"Abercrombie & Fitch Federal Tax Liability" shall mean, with respect to
any taxable year, the sum of the Abercrombie & Fitch Group's Federal Tax
liability and any interest, penalties and other additions to such taxes for such
taxable year, computed as if the Abercrombie & Fitch Group were not and never
were part of The Limited Consolidated Group, but rather were a separate
affiliated group of corporations filing a consolidated federal income tax return
pursuant to Section 1501 of the Code, provided, however, that transactions with
members of The Limited Group shall be reflected according to the provisions of
the consolidated return regulations promulgated under the Code governing
intercompany transactions, and that the Distribution will trigger any deferred
amounts, excess loss accounts or similar items. Such computation shall be made
(A) without regard to the income, deductions (including net operating loss and
capital loss deductions) and credits in any year of any member of The Limited
Consolidated Group that is not a member of the Abercrombie & Fitch Group, (B) by
taking account of any Tax Asset of the Abercrombie & Fitch Group in accordance
with Section 3(c)(iii) hereof, (C) with regard to net operating loss and capital
loss carryforwards and carrybacks and minimum tax credits from earlier years of
the Abercrombie & Fitch Group, but without regard to any such carryforward from
a tax period (or portion thereof) ending on or before September 27, 1996, date
of the initial public offering of Abercrombie & Fitch, and arising solely due to
treating the Abercrombie & Fitch Group as if it were never part of The Limited
Consolidated Group, (D) as though the highest rate of tax specified in
subsection (b) of Section 11 of the Code (or any other similar rates applicable
to specific types of income) were the only rates set forth in that subsection,
and with other similar adjustments as described in Section 1561 of the Code, (E)
reflecting the positions, elections and accounting methods used by The Limited
in preparing the consolidated federal income tax return for The Limited
Consolidated Group, (F) by not permitting the Abercrombie & Fitch Group any
compensation deductions arising in respect of any exercise of options on The
Limited stock by, or the issuance or vesting of The Limited restricted stock to,
any employee of the Abercrombie & Fitch Group prior to the Distribution Date,
and (G) without regard to gain attributable to the recognition of The Limited's
excess loss account with respect to the stock of Abercrombie & Fitch and
Abercrombie & Fitch's excess loss account with respect to stock of its
subsidiaries as a result of the Distribution.
"Abercrombie & Fitch Group" shall mean, at any time, Abercrombie & Fitch
and any direct or indirect corporate subsidiaries of Abercrombie & Fitch that
would be eligible to join with Abercrombie & Fitch, with respect to Federal
Taxes, in the filing of a consolidated federal income tax return and, with
respect to Combined State Taxes, in the filing of a consolidated, combined or
unitary income or franchise tax return, including any predecessors thereto.
"Abercrombie & Fitch Tax Liability" shall mean, with respect to any
taxable year, the sum of Abercrombie & Fitch Combined State Tax Liability and
Abercrombie & Fitch Federal Tax Liability.
"After-Tax Amount" shall mean an additional amount necessary to reflect
the hypothetical tax consequences of the receipt or accrual of any payment,
using the maximum statutory rate (or rates, in the case of an item that affects
more than one tax) applicable to the recipient of such payment for the relevant
year, reflecting for example, the effect of the deductions available for
interest paid or accrued and for taxes such as state and local income taxes.
"Combined State Tax" means, with respect to each state or local taxing
jurisdiction, any income, franchise or similar tax payable to such state or
local taxing jurisdiction in which a member of the Abercrombie & Fitch Group
files tax returns with a member of The Limited Group, on a consolidated,
combined or unitary basis for purposes of such income or franchise tax.
"Contingent Redemption Agreement" means the contingent stock redemption
agreement, dated January 26, 1996, entered into among The Limited, Leslie H.
Wexner and The Wexner Children's Trust.
"Distribution" shall mean the Exchange Offer and the Spin-Off as
described in the Offering Circular-Prospectus dated ___, 1998.
"Distribution Date" shall mean the date on which the Distribution
shall be effected.
"Federal Tax" shall mean any tax imposed under Subtitle A of the Code and
any related interest or penalty imposed under Subtitle F of the Code.
"Final Determination" shall mean (i) with respect to Federal Taxes, a
"determination" as defined in Section 1313 (a) of the Code or execution of an
Internal Revenue Service Form 870AD and, with respect to taxes other than
Federal Taxes, any final determination of liability in respect of a tax that,
under applicable law, is not subject to further appeal, review or modification
through proceedings or otherwise, (ii) any final disposition of a tax issue by
reason of the expiration of a statute of limitations or (iii) the payment of tax
by The Limited with respect to any item disallowed or adjusted by any taxing
authority where The Limited determines in good faith that no action should be
taken to recoup such payment.
"IRS" shall mean the Internal Revenue Service.
"Post-Distribution Tax Period" means (i) any tax period beginning and
ending after the Distribution Date and (ii) with respect to a tax period that
begins before and ends after the Distribution Date, such portion of the tax
period that commences on the day immediately after the Distribution Date.
"Pre-Distribution Tax Period" means (i) any tax period beginning and
ending before or on the Distribution Date and (ii) with respect to a period that
begins before and ends after the Distribution Date, such portion of the tax
period ending on and including the Distribution Date.
"Prime" shall mean, the rate announced from time to time as "prime" by
BankOne, Columbus, Ohio, as its prime rate with respect to the applicable
currency.
"Referee" is defined in Section 16.
"Return" shall mean any tax return, statement, report or form (including
estimated tax returns and reports, extension requests and forms, and information
returns and reports) required to be filed with any taxing authority.
"Tax Asset" shall mean any net operating loss, net capital loss,
investment tax credit, foreign tax credit, charitable deduction or any other
credit or tax attribute that could be carried forward or back to reduce taxes
(including without limitation deductions and credits related to alternative
minimum taxes).
"Tax Packages" shall mean one or more packages of information, that are
(i) reasonably necessary for the purpose of preparing tax Returns of The Limited
Consolidated Group with respect to any Pre-Distribution Tax Period, or of the
Abercrombie & Fitch Group with respect to any Post-Distribution Tax Period and
(ii) completed in all material respects in accordance with the standards that
The Limited has established for its subsidiaries.
"Tax Proceeding" shall mean any tax audit, dispute or proceeding (whether
administrative or judicial).
"The Limited Consolidated Group" shall mean The Limited and each direct
and indirect corporate subsidiary, including the Abercrombie & Fitch Group that
is eligible to join with The Limited in the filing of (i) for Federal Tax
purposes, a consolidated federal income tax return, and (ii) for Combined State
Tax Purposes, a Combined State Tax Return.
"The Limited Group" shall mean, at any time, The Limited and each of its
direct and indirect corporate subsidiaries other than those subsidiaries that
are members of the Abercrombie & Fitch Group.
(b) Any term used in this Agreement which is not defined in this
Agreement shall, to the extent the context requires, have the meaning assigned
to it in the Code or the applicable Treasury regulations thereunder or in
comparable provisions of applicable law.
2. Administrative and Compliance Matters.
(a) Sole Tax Sharing Agreement. Any and all existing Tax sharing
agreements or arrangements, written or unwritten, between any member of The
Limited Group and any member of the Abercrombie & Fitch Group shall be
terminated as of the effective date of this Agreement. As of the date of this
Agreement, neither the members of the Abercrombie & Fitch Group nor the members
of The Limited Group shall have any further rights or liabilities thereunder,
and this Agreement shall be the sole tax sharing agreement between the members
of the Abercrombie & Fitch Group and the members of The Limited Group.
Notwithstanding the foregoing, if any such termination is not binding on any
taxing authority, the Abercrombie & Fitch Group shall hold the affected member
of The Limited Group harmless against any adverse effect which would have been
avoided if such termination had been given effect by such taxing authority.
(b) Designation of Agent. Each member of the Abercrombie & Fitch Group
hereby irrevocably authorizes and designates The Limited, as its agent,
coordinator, and administrator, for the purpose of taking any and all actions
(including the execution of waivers of applicable statutes of limitation)
necessary or incidental to the filing of any Return, any amended Return, or any
claim for refund (even where an item or Tax Asset giving rise to an amended
Return or refund claim arises in a Post-Distribution Tax Period), credit or
offset of tax or any other proceedings, and for the purpose of making payments
to, or collecting refunds from, any taxing authority, in each case relating only
to any Pre-Distribution Tax Period. The Limited Group covenants to Abercrombie &
Fitch that it shall be responsible to see that all such administrative matters
relating thereto shall be handled promptly and appropriately.
(c) Pre-Distribution Tax Period Returns. The Limited will prepare,
consistently with past practice and applicable law and with the assistance of
the Abercrombie & Fitch Group, the consolidated Federal Tax Returns and Combined
State Tax Returns of The Limited Consolidated Group for all Pre-Distribution Tax
Periods. The Limited shall have the right with respect to such Returns to
determine (i) the manner in which such returns, documents or statements shall be
prepared and filed, including, without limitation, the manner in which any item
of income, gain, loss, deduction or credit shall be reported, (ii) whether any
extensions should be requested, and (iii) the elections that will be made by any
member of The Limited Group or the Abercrombie & Fitch Group. In addition, with
respect to all Pre-Distribution Tax Periods, The Limited shall have the right to
(i) contest, compromise or settle any adjustment or deficiency proposed,
asserted or assessed as a result of any audit of any Return filed by The Limited
Consolidated Group, (ii) file, prosecute, compromise or settle any claim for
refund, and (iii) determine whether any refunds to which The Limited
Consolidated Group may be entitled shall be received by way of refund or credit
against the tax liability of The Limited Consolidated Group. No later than 60
days after the Distribution Date, Abercrombie & Fitch shall prepare and deliver
to The Limited Tax Packages that include information of Abercrombie & Fitch
Group for the Pre-Distribution Tax Period that includes the Distribution Date.
In addition, if The Limited decides to make the election referred to in section
(d) below, Abercrombie & Fitch shall prepare and deliver to The Limited Tax
Packages that include information of Abercrombie & Fitch Group for the tax
period beginning immediately after the Distribution Date no later than 60 days
after the end of such tax period.
(d) Allocation. The Limited may, at its option, elect and Abercrombie &
Fitch shall join The Limited in electing (if necessary) to ratably allocate
items (other than extraordinary items) of the Abercrombie & Fitch Group in
accordance with relevant provisions of the Treasury Regulations Section
1.1502-76. If The Limited exercises its option to make the election, each member
of the Abercrombie & Fitch Group will provide a statement stating its consent to
such election as required under the regulations.
(e) Separate State Tax Returns and Post-Distribution Tax Period Returns of
Abercrombie & Fitch Group. Abercrombie & Fitch shall be solely responsible for
the preparation and filing of its separate state and local tax Returns and its
Returns for all Post-Distribution Tax Periods.
3. Tax Sharing.
(a) General. For each taxable year of The Limited Consolidated Group
during which income, loss or credit against tax of the Abercrombie & Fitch Group
are includible in the consolidated Federal Tax return of The Limited
Consolidated Group, Abercrombie & Fitch shall pay to The Limited an amount equal
to the Abercrombie & Fitch Federal Tax Liability, and for each taxable period
during which income, loss or credit against tax of any member of the Abercrombie
& Fitch Group are includible in a return relating to a Combined State Tax,
Abercrombie & Fitch shall pay The Limited an amount equal to the Abercrombie &
Fitch Combined State Tax Liability for such taxable period, each as shown on the
Pro Forma Returns (as defined in paragraph (c) below).
(b) Estimated Payments. The Limited shall determine the amount of the
estimated tax installment of the Abercrombie & Fitch Federal Tax Liability
(corresponding to The Limited's estimated Federal Tax installment) with respect
to a taxable year in which the Abercrombie & Fitch Group is part of The Limited
Consolidated Group (whether or not such payment is made prior to the
Distribution), as determined under the principles of Section 3(a) of this
Agreement. The Limited shall provide Abercrombie & Fitch with notice of such
estimated tax determination for Federal Tax no later than 10 days before the
date such corresponding installment payment is due. Abercrombie & Fitch shall,
within 5 days of receipt of such determination (but in no event earlier than 5
days prior to the due date of The Limited's corresponding estimated tax
payment), review the notice of determination and pay to The Limited the amount
so determined. The Limited shall determine under provisions of applicable law
the amount of the estimated tax installment of the Abercrombie & Fitch Combined
State Tax Liability (corresponding to the relevant estimated Combined State Tax
installment) with respect to a taxable year in which the Abercrombie & Fitch
Group is part of The Limited Consolidated Group (whether or not such payment is
made prior to the Distribution), as determined under the principles of Section
3(a) of this Agreement. The Limited shall provide Abercrombie & Fitch with
notice of such estimated tax determination for Combined State Tax no later than
10 days before the date such corresponding installment payment is due.
Abercrombie & Fitch shall, within 5 days of receipt of such determination (but
in no event earlier than 5 days prior to the due date of The Limited's
corresponding estimated tax payment), review the notice and pay to The Limited
or The Limited shall pay to the Abercrombie & Fitch, as appropriate, the amount
so determined in accordance with Section 9 hereof.
(c) Payment of Taxes at Year-End.
(i) Not later than 5 days after the due date (including all applicable
and valid extensions) for The Limited Consolidated Group's consolidated Federal
Tax return, The Limited shall deliver to Abercrombie & Fitch a pro forma Federal
Tax return (a "Pro Forma Federal Return") of the Abercrombie & Fitch Group
reflecting the Abercrombie & Fitch Federal Tax Liability. Not later than 30 days
after the due date for each Combined State Tax return, The Limited shall deliver
to Abercrombie & Fitch the relevant pro forma Combined State Tax return (each a
"Pro Forma Combined State Return" and together with the Pro Forma Federal
Return, the "Pro Forma Returns") of the Abercrombie & Fitch Group reflecting the
relevant Abercrombie & Fitch Combined State Tax Liability. The Pro Forma Returns
shall be prepared in good faith in a manner generally consistent with past
practice. Each Pro Forma Return shall be delivered together with a statement
showing a calculation of the amount to be paid pursuant to section (3)(c)(ii)
below.
(ii) Not later than 15 days after the receipt of each Pro Forma Return,
Abercrombie & Fitch shall pay to The Limited, or The Limited shall pay to
Abercrombie & Fitch, as appropriate, an amount equal to the difference, if any,
between the Abercrombie & Fitch Federal Tax Liability or the Abercrombie & Fitch
Combined State Tax Liability, as the case may be, reflected on such Pro Forma
Return for such period and the aggregate amount of the estimated installments
paid with respect thereto pursuant to Section 3(b).
(iii) If a Pro Forma Return reflects a Tax Asset that may under
applicable law be used to reduce a Federal Tax or Combined State Tax liability
of any member of The Limited Group for any taxable period, The Limited shall pay
to Abercrombie & Fitch an amount equal to the actual tax saving (which would
include refunds actually received) produced by such Tax Asset at the time such
Tax saving is realized and the future Pro Forma Returns of the Abercrombie &
Fitch Group shall be adjusted to reflect such use. The amount of any such tax
saving for any taxable period shall be the amount of the reduction in taxes
payable to a taxing authority with respect to such tax period as compared to the
taxes that would have been payable to a taxing authority with respect to such
tax period in the absence of such Tax Asset.
(iv) In the event that The Limited makes a cash deposit with a taxing
authority in order to stop the running of interest or makes a payment of tax and
correspondingly takes action to recoup such payment (such as suing for a
refund), Abercrombie & Fitch shall pay to The Limited an amount equal to
Abercrombie & Fitch's share of the amount so deposited or paid (calculated in a
manner consistent with the determinations provided in this Section 3). Upon
receipt by The Limited of a refund of any amounts paid by it in respect of which
Abercrombie & Fitch shall have advanced an amount hereunder, The Limited shall
pay to Abercrombie & Fitch the amount of such refund, together with any interest
received by it on such refund. If and to the extent that any claim for refund or
contest based thereupon shall be unsuccessful, the payment by Abercrombie &
Fitch under Section 3(c)(iv) shall be credited toward Abercrombie & Fitch's
obligations under this Section 3(c)(iv) and any other payment obligation of
Abercrombie & Fitch under Section 3(d) below.
(d) Treatment of Adjustments. If any adjustment is made in a Federal Tax
return of The Limited Group or in a return relating to a Combined State Tax,
after the filing thereof, in which income or loss of the Abercrombie & Fitch
Group (or any member thereof) is included, then at the time of a Final
Determination of the adjustment, Abercrombie & Fitch shall pay to The Limited or
The Limited shall pay to Abercrombie & Fitch, as the case may be, the difference
between all payments actually made under Section 3 with respect to the taxable
year or period covered by such tax return and all payments that would have been
made under Section 3 taking such adjustment into account, together with any
penalties actually paid and interest for each day until the date of Final
Determination calculated at a rate equal to Prime rate.
(e) Carrybacks From Post-Distribution Years.
(i) The Limited agrees to pay to Abercrombie & Fitch the actual tax
benefit received by The Limited Consolidated Group from the use in any
Pre-Distribution Tax Period of a carryback of any Tax Asset of the Abercrombie &
Fitch Group from a Post-Distribution Tax Period. Such benefit shall be equal to
the excess of (i) the amount of Federal Taxes, or Combined State Taxes, as the
case may be, that would have been payable (or of the tax refund that would have
been receivable) by The Limited Consolidated Group in the absence of such
carryback over (ii) the amount of Federal Taxes or Combined State Taxes, as the
case may be, actually payable (or of the Tax refund actually receivable) by The
Limited Consolidated Group.
(ii) If, subsequent to the payment by The Limited Group to Abercrombie &
Fitch Group of any amount, there shall be (A) a Final Determination which
results in a disallowance or a reduction of the Tax Asset so carried back or (B)
a reduction in the amount of the benefit realized by The Limited Consolidated
Group from such Tax Asset as a result of a Final Determination or the use by The
Limited Consolidated Group of a Tax Asset of The Limited Group, the Abercrombie
& Fitch Group shall repay to The Limited, within 90 days of such event described
in (A) or (B) (an "Event" or, collectively the Events") any amount which would
not have been payable to the Abercrombie & Fitch Group pursuant to this Section
3(e) had the amount of the benefit been determined in light of the Events. In
addition, the Abercrombie & Fitch Group shall hold each member of The Limited
Group harmless for any penalty or interest payable by any member of The Limited
Group as a result of any such Event. Any such amount shall be paid by The
Abercrombie & Fitch Group within 90 days of the payment by The Limited Group of
any such interest or penalty. Nothing in this Section 3(e) shall require The
Limited to file a claim for refund of Federal Taxes or Combined States Taxes
which The Limited, in its sole discretion, determined lacks substantial
authority, as defined in the Code and the regulations thereunder.
(iii) Any refunds or credits of tax received by a member of The Limited
Group or the Abercrombie & Fitch Group, as the case may be, relating to a
Pre-Distribution Tax Period, to the extent attributable to any item of income,
loss, credit, deduction or other tax attribute of any member of the Abercrombie
& Fitch Group or The Limited Group, respectively, shall be paid by such member
of The Limited Group or the Abercrombie & Fitch Group, respectively, to
Abercrombie & Fitch or The Limited, respectively, within 90 days of receipt;
provided that no such payment shall be required to the extent such refund or
credit is attributable to (x) a Tax Asset of the Abercrombie & Fitch Group or
The Limited Group, respectively, for which payment has previously been made by
The Limited Group or the Abercrombie & Fitch Group, respectively, pursuant to
Section 3(c)(iii), 3(e)(1) or 3(e)(iii), or (y) an adjustment for which payment
in respect thereof has previously been made pursuant to Section 3(d).
4. Certain Representations and Covenants.
(a)(i) Abercrombie & Fitch Representations. Abercrombie & Fitch and each
member of the Abercrombie & Fitch Group represent that, as of the date hereof,
and covenant that on the Distribution Date there is no plan or intention (A) to
liquidate Abercrombie & Fitch or to merge or consolidate Abercrombie & Fitch, or
any member of the Abercrombie & Fitch Group conducting an active trade or
business relied upon in connection with the Distribution, with any other person
subsequent to the Distribution, (B) to sell or otherwise dispose of any asset
(or close any store) of Abercrombie & Fitch or any member of the Abercrombie &
Fitch Group subsequent to the Distribution, except in the ordinary course of
business, (C) to take any action inconsistent with the information and
representations furnished to the IRS in connection with the request for a
private letter ruling with respect to the Distribution, (D) to repurchase stock
of Abercrombie & Fitch in a manner contrary to the requirements of Revenue
Procedure 96-30 or in a manner contrary to the representations made in
connection with the request for a private letter ruling with respect to the
Distribution, or (E) to enter into any negotiations, agreements, or arrangements
with respect to transactions or events (including stock issuances, pursuant to
the exercise of options or otherwise, option grants, capital contributions, or
acquisitions, but not including the Distribution) which may cause the
Distribution to be treated as part of a plan pursuant to which one or more
persons acquire directly or indirectly Abercrombie & Fitch stock representing a
"50-percent or greater interest" within the meaning of Section 355(d)(4) of the
Code.
(ii) The Limited Representations. The Limited and each member of The
Limited Group represent that, as of the date hereof, and covenant on the
Distribution Date there is no plan or intention to take any action inconsistent
with the information and representations furnished to the IRS and Davis Polk &
Wardwell in connection with the request for a private letter ruling with respect
to the Distribution, regardless of whether such information and representations
were included in the ruling or pronouncement issued by the IRS.
(iii) Abercrombie & Fitch and The Limited Representations. Except
pursuant to the terms of the Contingent Redemption Agreement, each of
Abercrombie & Fitch, The Limited and the members of the Abercrombie & Fitch
Group and The Limited Group, respectively, represent that, as of the date
hereof, and covenant that on the Distribution Date, neither Abercrombie & Fitch,
The Limited nor the members of the Abercrombie & Fitch Group or The Limited
Group, respectively (as applicable), is aware of any present plan or intention
by the current shareholders of The Limited to sell, exchange, transfer by gift,
or otherwise dispose of any of their stock in, or securities of, The Limited or
Abercrombie & Fitch subsequent to the Distribution.
(b) Abercrombie & Fitch Covenants. Abercrombie & Fitch covenants to The
Limited that (i) during the two-year period following the Distribution Date,
neither Abercrombie & Fitch nor any member of the Abercrombie & Fitch Group
conducting an active trade or business relied upon in connection with the
Distribution, will liquidate, merge or consolidate with any other person, (ii)
during the two-year period following the Distribution Date, Abercrombie & Fitch
will not sell, exchange, distribute or otherwise dispose of its assets or those
of any member of the Abercrombie & Fitch Group, or close any of its stores or
those of any member of the Abercrombie & Fitch Group, except in the ordinary
course of business, (iii) following the Distribution, Abercrombie & Fitch will,
for a minimum of two years, continue the active conduct of the historic business
conducted by Abercrombie & Fitch throughout the five year period prior to the
Distribution, (iv) Abercrombie & Fitch will not, nor will it permit any member
of the Abercrombie & Fitch Group to, take any action inconsistent with the
information and representations furnished to the IRS in connection with the
request for a private letter ruling with respect to the Distribution, (v)
Abercrombie & Fitch will not repurchase stock of Abercrombie & Fitch in a manner
contrary to the requirements of Revenue Procedure 96-30 or in a manner contrary
to the representations made in connection with the request for a private letter
ruling with respect to the Distribution, (vi) on or after the Distribution Date,
it will not, nor will it permit any member of the Abercrombie & Fitch Group to
make or change any accounting method, change its taxable year, amend any tax
Return or take any tax position on any tax Return, take any other action, omit
to take any action or enter into any transaction that results in any increased
tax liability or reduction of any Tax Asset of The Limited Consolidated Group or
any member thereof in respect of any Pre-Distribution Tax Period, (vii) during
the tax period of the Abercrombie & Fitch Group that begins immediately after
the Distribution Date, it will not, nor will it permit any member of the
Abercrombie & Fitch Group to, enter into any transaction or take any other
action that is motivated, in whole or in part, by tax considerations, (viii)
during the applicable period provided in Section 355(e)(2)(B) of the Code with
respect to the Distribution, it will not enter into any transaction or make any
change in equity structure (including stock issuances, pursuant to the exercise
of options, option grants or otherwise, capital contributions, or acquisitions,
but not including the Distribution) which may cause the Distribution to be
treated as part of a plan pursuant to which one or more Persons acquire directly
or indirectly Abercrombie & Fitch stock representing a "50-percent or greater
interest" within the meaning of Section 355(d)(4) of the Code, and (ix) it will
file federal consolidated returns with its subsidiaries for the tax period
immediately after the Distribution Date.
(c) Exceptions. Notwithstanding the foregoing, Abercrombie & Fitch and
the members of the Abercrombie & Fitch Group may take actions inconsistent with
the covenants contained in Section 4(b)(i) through (vii) above, if:
(i) Abercrombie & Fitch obtains a ruling from the IRS to the effect that
such actions will not result in the Distribution being taxable to The Limited or
its shareholders; or
(ii) Abercrombie & Fitch obtains an opinion of counsel recognized as an
expert in federal income tax matters and acceptable to The Limited to the same
effect as in Section 4(c)(i), provided such opinion is reasonably acceptable to
The Limited.
(d) Deductions and Certain Taxes Related to Options.
(i) The Limited shall file Returns claiming (x) the tax deductions
attributable to the exercise of options to purchase stock of The Limited or the
vesting of The Limited restricted stock which are held by employees or former
employees of the Abercrombie & Fitch Group or (y) any other similar compensation
related tax deductions. The Returns of the Limited Group and the Abercrombie &
Fitch Group shall reflect the entitlement of The Limited Group to such
deductions. To the extent such deductions are disallowed because a taxing
authority determines that the Abercrombie & Fitch Group should have claimed such
deductions, as consideration for The Limited's issuance of shares of its stock
as a result of an event described in clause (x) of the preceding sentence, the
Abercrombie & Fitch Group shall pay to The Limited Group an amount equal to the
tax paid by The Limited Group as a result of such disallowance. Upon the
exercise of any option or the vesting of any restricted stock described in
clause (x), or the occurrence of any other event that would result in a
compensation related tax deduction, as the case may be, the Abercrombie & Fitch
Group (as agent for the Limited Group) shall prepare and file all applicable tax
returns and pay the applicable tax liability under the Federal Insurance
Contributions Act, the Federal Unemployment Tax Act or any state employment tax
law in connection with such event.
(ii) Abercrombie & Fitch shall file Returns claiming (x) the tax
deductions attributable to the exercise of options to purchase stock of
Abercrombie & Fitch which are held by employees or former employees of The
Limited Group or (y) any other similar compensation related tax deductions. The
Returns of The Limited Group and the Abercrombie & Fitch Group shall reflect the
entitlement of The Abercrombie & Fitch Group to such deductions. To the extent
such deductions are disallowed because a taxing authority determines that The
Limited Group should have claimed such deductions, as consideration for
Abercrombie & Fitch's issuance of shares of its stock as a result of an event
described in clause (x) of the preceding sentence, The Limited Group shall pay
to The Abercrombie & Fitch Group an amount equal to the tax paid by Abercrombie
& Fitch Group as a result of such disallowance. Upon the exercise of any option
described in the immediately preceding clause (x), or the occurrence of any
other event that would result in a compensation related tax deduction, as the
case may be, The Limited Group (as agent for Abercrombie & Fitch Group) shall
prepare and file all applicable tax return and pay the applicable tax liability
under the Federal Insurance Contributions Act, the Federal Unemployment Tax Act
or any state employment tax law in connection with the exercise of such an
option.
5. Indemnities.
(a) Abercrombie & Fitch Indemnity. Abercrombie & Fitch and each member of
the Abercrombie & Fitch Group will jointly and severally indemnify The Limited
and the members of The Limited Group that were members of The Limited
Consolidated Group (that included a member of the Abercrombie & Fitch Group)
against and hold them harmless from:
(i) any Abercrombie & Fitch Group Tax Liability;
(ii) any liability or damage resulting from a breach by Abercrombie &
Fitch or any member of the Abercrombie & Fitch Group of any representation or
covenant made by Abercrombie & Fitch herein; and
(iii) all liabilities, costs, expenses (including, without limitation,
reasonable expenses of investigation and attorneys' fees and expenses), losses,
damages, assessments, settlements or judgments arising out of or incident to the
imposition, assessment or assertion of any tax liability or damage described in
(i) or (ii) including those incurred in the contest in good faith in appropriate
proceedings relating to the imposition, assessment or assertion of any such tax,
liability or damage.
(b) The Limited Indemnity. The Limited and each member of The Limited
Group will jointly and severally indemnify Abercrombie & Fitch and the members
of the Abercrombie & Fitch Group that were members of The Limited Consolidated
Group (that included a member of The Limited Group) against and hold them
harmless from:
(i) any The Limited Group Tax Liability and any tax liability resulting
from the Distribution, other than any such liabilities described in Section
5(a);
(ii) any liability or damage resulting from a breach by The Limited or
any member of The Limited Group of any representation or covenant made by The
Limited herein; and
(iii) all liabilities, costs, expenses (including, without limitation,
reasonable expenses of investigation and attorneys' fees and expenses), losses,
damages, assessments, settlements or judgments arising out of or incident to the
imposition, assessment or assertion of any tax liability or damage described in
(i) or (ii) including those incurred in the contest in good faith in appropriate
proceedings relating to the imposition, assessment or assertion of any such tax,
liability or damage.
If a member of The Limited Group ceases to be a member of The Limited as a
result of a sale of its stock to a third party (whether or not treated as a sale
of stock for tax purposes), such member of The Limited Group shall be released
from its obligations under this Agreement upon such sale and neither The Limited
nor any member of The Limited Group shall have any obligation to indemnify
Abercrombie & Fitch or any member of the Abercrombie & Fitch Group under Section
5(b)(iii) for any liability or damage attributable to actions taken by such
member after such sale.
(c) Discharge of Indemnity. Abercrombie & Fitch, The Limited and the
members of the Abercrombie & Fitch Group and The Limited Group, respectively,
shall discharge their obligations under Section 5(a) and 5(b) hereof,
respectively, by paying the relevant amount within 30 days of demand therefor.
After a Final Determination of an obligation of Abercrombie & Fitch or any
member of the Abercrombie & Fitch Group under Section 5(a), The Limited shall
send a statement to Abercrombie & Fitch showing the amount due thereunder. After
a Final Determination of an obligation of The Limited or any member of The
Limited Group under Section 5(b), Abercrombie & Fitch shall send a statement to
The Limited showing the amount due thereunder. Calculation mechanics relating to
items described in Section 5(a)(i) are set forth in Section 3(c).
Notwithstanding the foregoing, if either Abercrombie & Fitch, The Limited or any
member of the Abercrombie & Fitch Group or The Limited Group disputes in good
faith the fact or the amount of its obligation under Section 5(a) or Section
5(b), then no payment of the amount in dispute shall be required until any such
good faith dispute is resolved in accordance with Section 16 hereof; provided,
however, that any amount not paid within 30 days of demand therefor shall bear
interest as provided in Section 9.
(d) Tax Benefits. If an indemnification obligation of any member of The
Limited Group or any member of the Abercrombie & Fitch Group, as the case may
be, under this Section 5 with respect to The Limited Consolidated Group arises
in respect of an adjustment that makes allowable to a member of the Abercrombie
& Fitch Group or a member of The Limited Group, respectively, any deduction,
amortization, exclusion from income or other allowance (a "Tax Benefit") which
would not, but for such adjustment, be allowable, then any payment by any member
of The Limited Group or any member of the Abercrombie & Fitch Group,
respectively, pursuant to this Section 5 shall be an amount equal to (X) the
amount otherwise due but for this subsection (d), minus (Y) the present value of
the product of the Tax Benefit multiplied (i) by the maximum federal, foreign or
state, as the case may be, corporate tax rate in effect at the time such Tax
Benefit becomes allowable to a member of the Abercrombie & Fitch Group or a
member of The Limited Group (as the case may be) or (ii) in the case of a
credit, by 100 percent. The present value of such product shall be determined by
discounting such product from the time the Tax Benefit becomes allowable at a
rate equal to Prime.
6. Subsidiaries.
(a) Performance. The Limited agrees and acknowledges that The Limited
shall be responsible for the performance of the obligations of each member of
The Limited Group hereunder applicable to such subsidiary. Abercrombie & Fitch
agrees and acknowledges that Abercrombie & Fitch shall be responsible for the
performance by each member of the Abercrombie & Fitch Group of the obligations
hereunder applicable to such member.
(b) Application to Present and Future Subsidiaries. This Agreement is
being entered into by The Limited and Abercrombie & Fitch on behalf of
themselves and each member of The Limited Group and Abercrombie & Fitch Group,
respectively. This Agreement shall constitute a direct obligation of each such
member and shall be deemed to have been readopted and affirmed on behalf of any
corporation which becomes a member of The Limited Group or Abercrombie & Fitch
Group in the future.
7. Communication and Cooperation.
(a) Consult and Cooperate. Abercrombie & Fitch and The Limited shall
consult and cooperate (and shall cause each member of the Abercrombie & Fitch
Group or The Limited Group, respectively, to cooperate) fully at such time and
to the extent reasonably requested by the other party in connection with all
matters subject to this Agreement. Such cooperation shall include, without
limitation,
(i) the retention and provision on reasonable request of any
and all information including all books, records, documentation or
other information pertaining to tax matters relating to The Limited
Group and the Abercrombie & Fitch Group, any necessary explanations
of information, and access to personnel, until two years after the
expiration of the applicable statute of limitation (giving effect to
any extension, waiver, or mitigation thereof);
(ii) the execution of any document that may be necessary or
helpful in connection with any required Return or in connection with
any audit, proceeding, suit or action; and
(iii) the use of the parties' best efforts to obtain any
documentation from a governmental authority or a third party that
may be necessary or helpful in connection with the foregoing.
(b) Provide Information. The Limited and Abercrombie & Fitch shall keep
each other fully informed with respect to any material development relating to
the matters subject to this Agreement.
(c) Tax Attribute Matters. The Limited and Abercrombie & Fitch shall
advise each other with respect to any proposed tax adjustments relating to a
Pre-Distribution Tax Period, which are the subject of an audit or investigation,
or are the subject of any proceeding or litigation, and which may affect any tax
liability or any tax attribute of The Limited, Abercrombie & Fitch, The Limited
Group, the Abercrombie & Fitch Group or any member of the Abercrombie & Fitch
Group or The Limited Group (including, but not limited to, basis in an asset or
the amount of earnings and profits). Except as otherwise provided herein, The
Limited shall determine the apportionment of tax attributes between The Limited
Group and the Abercrombie & Fitch Group in accordance with applicable laws.
8. Audits and Contest.
(a) Notwithstanding anything in this Agreement to the contrary, The
Limited shall have full control over all matters relating to any tax return or
any tax Proceeding relating to any tax matters of at least one member of The
Limited Consolidated Group. Except as provided in Section 8(b), The Limited
shall have absolute discretion with respect to any decisions to be made, or the
nature of any action to be taken, with respect to any matter described in the
preceding sentence.
(b) No settlement of any Tax Proceeding relating to any matter that would
cause a payment obligation under Sections 5(a) or 5(b) shall be accepted or
entered into by or on behalf of the party entitled to receive a payment under
either Section 5(a) or 5(b), whichever is applicable, unless the party
ultimately responsible for such payment under either Section 5(a) or 5(b),
whichever is applicable (the "Indemnitor"), consents thereto in writing (which
consent shall not be unreasonably withheld). If such consent is unreasonably
withheld, all expenses relating to the contest of such matter shall be borne by
the Indemnitor, and otherwise they shall be borne equally by the Indemnitor and
the indemnified party. If the Indemnitor does not respond to the indemnified
party's request for consent within 30 days, the Indemnitor will be deemed to
have consented to the settlement.
(c) The indemnified party agrees to give prompt notice to the Indemnitor
of the assertion of any claim, or the commencement of any suit, action or
proceeding in respect of which indemnity may be sought hereunder.
(d) With respect to Returns relating to taxes solely attributable to the
Abercrombie & Fitch Group, Abercrombie & Fitch and the members of the
Abercrombie & Fitch Group shall have full control over all matters relating to
any Tax Proceeding in connection therewith. Abercrombie & Fitch and the members
of the Abercrombie & Fitch Group shall have absolute discretion with respect to
any decisions to be made, or the nature of any action to be taken, with respect
to any matter described in the preceding sentence.
9. Payments.
All payments to be made hereunder shall be made in immediately available
funds. Except as otherwise provided, all payments required to be made pursuant
to this Agreement will be due 90 days after the receipt of notice of such
payment or, where no notice is required, 90 days after the fixing of liability
or the resolution of a dispute. Payments shall be deemed made when received. Any
payment that is not made when due shall bear interest at a rate equal to Prime
rate for each day until paid. If, pursuant to a Final Determination, any amount
paid by The Limited or the members of The Limited Group or Abercrombie & Fitch
or the members of the Abercrombie & Fitch Group, as the case may be, pursuant to
this Agreement results in any increased tax liability or reduction of any Tax
Asset of Abercrombie & Fitch or any member of the Abercrombie & Fitch Group or
The Limited or any member of The Limited Group, respectively, then The Limited
or Abercrombie & Fitch, as appropriate, shall indemnify the other party and hold
it harmless from any interest or penalty attributable to such increased tax
liability or the reduction of such Tax Asset and shall pay to the other party,
in addition to amounts otherwise owed, the After-Tax Amount.
10. Notices.
Any notice, demand, claim, or other communication under this Agreement
shall be in writing and shall be deemed to have been given upon the delivery or
mailing thereof, as the case may be, if delivered personally or sent by
certified mail, return receipt requested, postage prepaid, to the parties at the
following addresses (or at such other address as a party may specify by notice
to the other):
If to The Limited, to:
The Limited, Inc.
Three Limited Parkway
Columbus, OH 43230
Attention: Timothy B. Lyons
Fax: 614-479-7020
If to Abercrombie & Fitch, to:
Abercrombie & Fitch Co.
Four Limited Parkway East
Reynoldsburg, OH 43068
Attention: Seth Johnson
Fax: 614-577-6950
11. Costs and Expenses.
(a) Reimbursement for Certain Services. The Limited shall provide
services in connection with this Agreement, including but not limited to, those
services relating to the preparation of returns (including Pro Forma Returns)
and determination of Abercrombie & Fitch Tax Liability as described in sections
2 and 3. As compensation for these services, Abercrombie & Fitch shall pay The
Limited a fee. The Limited shall calculate the fee payable, invoice Abercrombie
& Fitch for the fee and Abercrombie & Fitch will pay the invoiced amount in a
manner consistent with the invoice and payment procedures provided for in the
Amended and Restated Services Agreement between Abercrombie & Fitch Co. and The
Limited, Inc. (the "Transitional Services Agreement").
(b) Additional Services. The Limited will provide the tax services
specified in the Transitional Services Agreement to the Abercrombie & Fitch
Group that do not relate to Federal Taxes or Combined State Taxes for any
Pre-Distribution Tax Period. The Limited will be compensated in the same manner
as described in Section 11(a).
(c) Others. Except as expressly set forth in this Agreement, each party
shall bear its own costs and expenses incurred pursuant to this Agreement. For
purposes of this Agreement, "out-of-pocket" expenses shall include reasonable
attorney fees, accountant fees and other related professional fees and
disbursements.
12. Effectiveness; Termination and Survival.
This Agreement shall become effective upon the consummation of the
Distribution. All rights and obligations arising hereunder with respect to a
Pre-Distribution Tax Period shall survive until they are fully effectuated or
performed and, provided, further, that notwithstanding anything in this
Agreement to the contrary, this Agreement shall remain in effect and its
provisions shall survive for the full period of all applicable statutes of
limitation (giving effect to any extension, waiver or mitigation thereof).
13. Section Headings.
The headings contained in this Agreement are inserted for convenience
only and shall not constitute a part hereof or in any way affect the meaning or
interpretation of this Agreement.
14. Entire Agreement; Amendments and Waivers; Severability.
(a) Entire Agreement. This Agreement and the exhibits hereto contains the
entire understanding of the parties hereto with respect to the subject matter
contained herein. No alteration, amendment, modification, or waiver of any of
the terms of this Agreement shall be valid unless made by an instrument signed
by an authorized officer of each of The Limited and Abercrombie & Fitch, or in
the case of a waiver, by the party against whom the waiver is to be effective.
(b) Amendments and Waivers. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
hereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege. This
Agreement shall not be waived, amended or otherwise modified except as in
writing, duly executed by all of the parties hereto.
(c) Severability. If any provision of this Agreement or the application
of any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid, illegal or unenforceable to any
extent, the remainder of this Agreement or such provision or the application of
such provision to such party or circumstances, other than those to which it is
so determined to be invalid, illegal or unenforceable, shall remain in full
force and effect to the fullest extent permitted by law and shall not be
affected thereby, unless such a construction would be unreasonable.
15. Governing Law and Interpretation.
This Agreement has been made in and shall be construed and enforced in
accordance with the laws of the state of New York without giving effect to laws
and principles relating to conflicts of law.
16. Dispute Resolution.
If the parties hereto are unable to resolve any disagreement or dispute
relating to this Agreement within 20 days, such disagreement or dispute shall be
resolved by a recognized law firm or accounting firm expert in tax matters in
the relevant jurisdiction or that is mutually acceptable to the parties hereto
(a "Referee"). A Referee so chosen shall resolve any such disagreement pursuant
to such procedures as it may deem advisable. Any such resolution shall be
binding on the parties hereto without further recourse. Except as otherwise
provided herein, the costs of any Referee shall be apportioned between The
Limited and Abercrombie & Fitch as determined by such Referee in such manner as
the Referee deems reasonable, taking into account the circumstances of the
dispute, the conduct of the parties and the result of the dispute.
17. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same Agreement.
18. Assignments; Third Party Beneficiaries.
Except as provided below, this Agreement shall be binding upon and shall
inure only to the benefit of the parties hereto and their respective successors
and assigns, by merger, acquisition of assets or otherwise (including but not
limited to any successor of a party hereto succeeding to the tax attributes of
such party under applicable law). This Agreement is not intended to benefit any
person other than the parties hereto and such successors and assigns, and no
such other person shall be a third party beneficiary hereof.
19. Further Assurances.
The Limited and Abercrombie & Fitch shall execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such instruments
and take such other action as may be necessary or advisable to carry out their
obligations under this Agreement and under any exhibit, document or other
instrument delivered pursuant hereto.
20. Authorization, etc.
Each of the parties hereto hereby represents and warrants that it has the
power and authority to execute, deliver and perform this Agreement, that this
Agreement has been duly authorized by all necessary corporate action on the part
of such party that this Agreement constitutes a legal, valid and binding
obligation of each such party and that the execution, delivery and performance
of this Agreement by such party does not contravene or conflict with any
provision or law or of its charter or bylaws or any agreement, instrument or
order binding on such party.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first written above.
The Limited on its own behalf and on behalf of
each member of The Limited Group.
By:__________________________
Title: Vice President, Taxes
Date:_______________________
Abercrombie & Fitch on its own behalf and on
behalf of each member of the Abercrombie & Fitch
Group.
By:__________________________
Title: Chief Financial Officer
Date:_______________________
EXHIBIT 10.3
FORM OF
AMENDED AND RESTATED SERVICES AGREEMENT
dated as of __________, 1998
between
ABERCROMBIE & FITCH CO.
and
THE LIMITED, INC.
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
Section 1.1. Definitions.............................................. 2
Section 1.2. Internal References...................................... 4
ARTICLE 2
Purchase and Sale of Services
Section 2.1. Purchase and Sale of Services............................ 4
Section 2.2. Additional Services...................................... 5
ARTICLE 3
Service Costs; Other Charges
Section 3.1. Service Costs Generally.................................. 5
Section 3.2. Customary Billing........................................ 5
Section 3.3. Pass-Through Billing..................................... 6
Section 3.4. Certain Benefits Matters................................. 6
Section 3.5. Invoicing and Settlement of Costs........................ 6
ARTICLE 4
The Services
Section 4.1. General Standard of Service.............................. 7
Section 4.2. Delegation............................................... 8
Section 4.3. Limitation of Liability.................................. 8
Section 4.4. Indemnification of The Limited by Abercrombie & Fitch.... 9
Section 4.5. Indemnification of Abercrombie & Fitch by The Limited.... 10
Section 4.6. Further Indemnification.................................. 10
Section 4.7. Notice of Certain Matters................................ 10
ARTICLE 5
Term and Termination
Section 5.1. Term..................................................... 11
Section 5.2. Termination.............................................. 11
Section 5.3. Effect of Termination.................................... 12
ARTICLE 6
Additional Agreements
Section 6.1. Confidential Information................................. 13
Section 6.2. Associate Matters........................................ 14
Section 6.3. Financial Support Arrangements........................... 14
Section 6.4. Insurance Matters........................................ 15
ARTICLE 7
Miscellaneous
Section 7.1. Prior Agreements......................................... 16
Section 7.2. Future Litigation and Other Proceedings.................. 16
Section 7.3. No Agency................................................ 17
Section 7.4. Subcontractors........................................... 17
Section 7.5. Force Majeure............................................ 17
Section 7.6. Entire Agreement......................................... 18
Section 7.7. Information.............................................. 18
Section 7.8. Notices.................................................. 18
Section 7.9. Governing Law............................................ 19
Section 7.10. Dispute Resolution....................................... 19
Section 7.11. WAIVER OF JURY TRIAL..................................... 20
Section 7.12. Severability............................................. 20
Section 7.13. Amendment................................................ 20
Section 7.14. Counterparts............................................. 20
Section 7.15. Services to The Limited.................................. 20
Section 7.16. Termination of Old Services Agreement.................... 20
AMENDED AND RESTATED SERVICES AGREEMENT
This Amended and Restated Services Agreement (this "Agreement")
is entered into as of _________ __, 1998 by and between Abercrombie & Fitch
Co., a Delaware corporation ("Abercrombie & Fitch"), and The Limited, Inc. a
Delaware corporation ("The Limited").
RECITALS
WHEREAS, The Limited owned approximately 84% of the outstanding
common stock of Abercrombie & Fitch prior to the consummation of the Exchange
Offer (as defined below);
WHEREAS, The Limited will no longer own any of the outstanding
common stock of Abercrombie & Fitch after the consummation of the Exchange
Offer and Spin-Off (as defined below), if any;
WHEREAS, The Limited has heretofore directly or indirectly
provided certain administrative, financial, management and other services to
the Abercrombie & Fitch Entities (as defined below) and Abercrombie & Fitch
has heretofore retained The Limited as an independent contractor to provide,
directly or indirectly, certain of those services to the Abercrombie & Fitch
Entities pursuant to the Services Agreement between Abercrombie & Fitch and
The Limited dated as of September 27, 1996 (the "Old Services Agreement"); and
WHEREAS, Abercrombie & Fitch and The Limited desire to amend
and restate the Old Services Agreement as set forth herein.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, The Limited and
Abercrombie & Fitch, for themselves, their successors and assigns, hereby
agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. (a) As used in this Agreement, the
following terms will have the following meanings, applicable both to the
singular and the plural forms of the terms described:
"Abercrombie & Fitch Entities" means Abercrombie & Fitch and
its Subsidiaries, and "Abercrombie & Fitch Entity" shall mean any of the
Abercrombie & Fitch Entities.
"Agreement" has the meaning ascribed thereto in the preamble
hereto, as such agreement may be amended and supplemented from time to time in
accordance with its terms.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York, New York or Columbus, Ohio
are authorized or required by law to close.
"Change of Control" means (i) the direct or indirect
acquisition (by merger, consolidation, business combination or otherwise) by
any Person or group or Persons of beneficial ownership (as defined in Rule
13d-1 and Rule 13d-5 under the Securities Exchange Act of 1934) of 50% or more
of the Total Voting Power of Abercrombie & Fitch, (ii) any merger,
consolidation or other business combination of Abercrombie & Fitch or a
Subsidiary of Abercrombie & Fitch with any Person after giving effect to which
(x) the shareholders of Abercrombie & Fitch immediately prior to such
transaction do not own at least 50% of the Total Voting Power of the ultimate
parent entity of the parties to such transaction or (y) individuals who were
directors of Abercrombie & Fitch immediately prior to such transaction (or
their designees) do not constitute a majority of the board of directors of
such ultimate parent entity and (iii) the direct or indirect acquisition by
any Person or group of Persons of all or substantially all of the assets of
Abercrombie & Fitch.
"Class A Common Stock" means the Class A common stock, par
value $.01 per share, of Abercrombie & Fitch.
"Effective Date" means the Expiration Date of the Exchange
Offer.
"Exchange Offer" means the offer by The Limited to exchange all
of its shares of Class A Common Stock for shares of common stock, par value
$.50 per share, of The Limited, which offer commenced on _____________, 1998
and was consummated as of the date hereof.
"Limited Entities" means The Limited and its Subsidiaries, and
"Limited Entity" shall mean any of The Limited Entities.
"Person" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization,
government (including any department or agency thereof) or other entity.
"Schedules" means Schedules I, II, III, IV, V, VI and VII
hereto.
"Services" means the various services described in the
Schedules.
"Subsidiary" means, as to any Person, any corporation,
association, partnership, joint venture or other business entity of which more
than 50% of the voting capital stock or other voting ownership interests is
owned or controlled directly or indirectly by such Person or by one or more of
the Subsidiaries of such Person or by a combination thereof.
"Total Voting Power" with respect to any Person means the total
combined voting power of all securities of such Person entitled to vote
generally in the election of directors of such Person.
(b) Each of the following terms is defined in the Section set
forth opposite such term:
Term Section
- ---- -------
Abercrombie & Fitch Preamble
Abercrombie & Fitch Indemnified Person 4.5
Actions 4.4
Applicable Insurance 6.4
Benefit Billing 3.1
Benefits Services 3.4
Confidential Information 6.1
Customary Billing 3.1
Employee Welfare Plans 4.2
Financial Support Arrangements 6.3(a)
force majeure 7.5
Limited Indemnified Person 4.3
Pass-Through Billing 3.1
Payment Date 3.5
Prior Agreements 7.1
Service Costs 3.1
The Limited Preamble
The Limited Plans 3.4
Section 1.2. Internal References. Unless the context
indicates otherwise, references to Articles, Sections and paragraphs shall
refer to the corresponding articles, sections and paragraphs in this Agreement
and references to the parties shall mean the parties to this Agreement.
ARTICLE 2
Purchase and Sale of Services
Section 2.1. Purchase and Sale of Services. (a) On the
terms and subject to the conditions of this Agreement and in consideration
of the Service Costs described below, The Limited agrees to provide to
Abercrombie & Fitch, or procure the provision to Abercrombie & Fitch of,
and Abercrombie & Fitch agrees to purchase from The Limited, the Services.
Unless otherwise specifically agreed by The Limited and Abercrombie &
Fitch, the Services to be provided or procured by The Limited hereunder
shall be substantially similar in scope, quality, and nature to those
customarily provided to, or procured on behalf of, the Abercrombie & Fitch
Entities prior to the Effective Date.
(b) It is understood that (i) Services to be provided to
Abercrombie & Fitch under this Agreement will, at Abercrombie & Fitch's
request, be provided to Subsidiaries of Abercrombie & Fitch and (ii) The
Limited may satisfy its obligation to provide or procure Services hereunder by
causing one or more of its Subsidiaries to provide or procure such Services.
With respect to Services provided to, or procured on behalf of, any Subsidiary
of Abercrombie & Fitch, Abercrombie & Fitch agrees to pay on behalf of such
Subsidiary all amounts payable by or in respect of such Services pursuant to
this Agreement; provided that, without in any way limiting the obligations of
Abercrombie & Fitch to pay for such Services, Abercrombie & Fitch may allow
Abercrombie & Fitch Service Corporation, a Delaware corporation, to make such
payments on its behalf.
Section 2.2. Additional Services. In addition to the Services
to be provided or procured by The Limited in accordance with Section 2.1, if
requested by Abercrombie & Fitch, and to the extent that The Limited and
Abercrombie & Fitch may mutually agree, The Limited shall provide additional
services (including services not provided by The Limited to the Abercrombie &
Fitch Entities prior to the Effective Date) to Abercrombie & Fitch. The scope
of any such services, as well as the term, costs, and other terms and
conditions applicable to such services, shall be as mutually agreed by The
Limited and Abercrombie & Fitch.
ARTICLE 3
Service Costs; Other Charges
Section 3.1. Service Costs Generally. The Schedules hereto
indicate, with respect to the Services listed therein, whether the costs to be
charged to Abercrombie & Fitch for such Service are to be determined by (i)
the customary billing method described in Section 3.2 ("Customary Billing"),
(ii) the pass-through billing method described in Section 3.3 ("Pass-Through
Billing") or (iii) based upon a calculation of certain costs relating to
employee benefit plans and benefit arrangements described in Section 3.4
("Benefit Billing"). The Customary Billing, Pass-Through Billing and Benefit
Billing methods applicable to Services provided to Abercrombie & Fitch are
collectively referred to herein as the "Service Costs". Abercrombie & Fitch
agrees to pay to The Limited in the manner set forth in Section 3.5 the
Service Costs applicable to each of the Services provided or procured by The
Limited.
Section 3.2. Customary Billing. The costs of Services as to
which the Customary Billing method applies shall be equal to (i) the costs
charged to Abercrombie & Fitch by The Limited for such Services immediately
prior to the Effective Date (it being understood that from and after the
Effective Date such costs may be increased by The Limited in a manner
consistent with the manner in which such costs were increased from time to
time prior to the Effective Date) plus (ii) 5 percent. Notwithstanding the
foregoing, any out-of-pocket, third-party expenses incurred by The Limited in
connection with the provision of any Services as to which the Customary
Billing method applies shall be passed through to Abercrombie & Fitch without
the 5 percent mark-up.
Section 3.3. Pass-Through Billing. The costs of Services as
to which the Pass-Through Billing method applies shall be equal to the
aggregate amount of third-party, out-of-pocket costs and expenses incurred by
any Limited Entity on behalf of any Abercrombie & Fitch Entity. If a Limited
Entity incurs any such costs or expenses on behalf of any Abercrombie & Fitch
Entity as well as businesses operated by The Limited, The Limited will
allocate any such costs or expenses in good faith between the various
businesses on behalf of which such costs or expenses were incurred as The
Limited shall determine in the exercise of The Limited's reasonable judgment.
The Limited shall apply usual and accepted accounting conventions in making
such allocations, and The Limited or its agents shall keep and maintain such
books and records as may be reasonably necessary to make such allocations. The
Limited shall make copies of such books and records available to Abercrombie &
Fitch upon request and with reasonable notice.
Section 3.4. Certain Benefits Matters. (a) Prior to the
Effective Date, certain associates of Abercrombie & Fitch participated in
certain benefit plans sponsored by The Limited ("The Limited Plans").
(b) The costs payable by Abercrombie & Fitch for Services relating
to employee plans and benefit arrangements ("Benefits Services") shall be
determined and, to the extent specified in Schedule I, billed as set forth on
Schedule I. It is the express intent of the parties that Service Costs
relating to the administration of Abercrombie & Fitch employee plans and the
performance of related Services will not exceed reasonable compensation for
such Services as defined in 29 CFR Section 2550.408c-2.
(c) The Limited and Abercrombie & Fitch agree to cooperate fully
with each other in the administration and coordination of regulatory and
administrative requirements associated with The Limited Plans.
Section 3.5. Invoicing and Settlement of Costs. (a) The
Limited will invoice or notify Abercrombie & Fitch on a monthly basis (not
later than the tenth day of each month), in a manner substantially consistent
with the billing practices used in connection with services provided to the
Abercrombie & Fitch Entities prior to the Effective Date (except as otherwise
agreed), of the Service Costs. In connection with the invoicing described in
this Section 3.5(a), The Limited will provide to Abercrombie & Fitch the same
billing data and level of detail as it customarily provided to the Abercrombie
& Fitch Entities prior to the Effective Date and such other data as may be
reasonably requested by Abercrombie & Fitch.
(b) Abercrombie & Fitch agrees to pay on or before 30 days after
the date on which The Limited invoices or notifies Abercrombie & Fitch of the
Service Costs (or the next Business Day, if such day is not a Business Day)
(each, a "Payment Date") by wire transfer of immediately available funds
payable to the order of The Limited all amounts invoiced by The Limited
pursuant to this Section 3.5(a) during the preceding calendar month. If
Abercrombie & Fitch fails to pay any monthly payment within 30 days of the
relevant Payment Date, Abercrombie & Fitch shall be obligated to pay, in
addition to the amount due on such Payment Date, interest on such amount at
the prime, or best, rate announced by Banc One Corp. compounded monthly from
the relevant Payment Date through the date of payment.
ARTICLE 4
The Services
Section 4.1. General Standard of Service. Except as otherwise
agreed with Abercrombie & Fitch or described in this Agreement, and provided
that The Limited is not restricted by contract with third parties or by
applicable law, The Limited agrees that the nature, quality, and standard of
care applicable to the delivery of the Services hereunder will be
substantially the same as that of the Services which The Limited provides from
time to time throughout its businesses. The Limited shall use its reasonable
efforts to ensure that the nature and quality of Services provided to
Abercrombie & Fitch associates either by The Limited directly or through
administrators under contract shall be undifferentiated as compared with the
same services provided to or on behalf of The Limited associates under The
Limited Plans. Subject to The Limited's express obligations under this
Agreement, the management of and control over the provision of the Services
shall reside solely with The Limited. Without limiting the generality of the
foregoing, all labor matters relating to associates of The Limited and its
Subsidiaries (including, without limitation, associates involved in the
provision of Services to Abercrombie & Fitch) shall be within the exclusive
control of The Limited, and Abercrombie & Fitch and its Subsidiaries shall not
take any action affecting such matters.
Section 4.2. Delegation. Subject to Section 4.1 above,
Abercrombie & Fitch hereby delegates to The Limited final, binding, and
exclusive authority, responsibility, and discretion to interpret and construe
the provisions of employee welfare benefit plans in which Abercrombie & Fitch
has elected to participate and which are administered by The Limited under
this Agreement (collectively, "Employee Welfare Plans"). The Limited may
further delegate such authority to plan administrators to:
(i) provide administrative and other services;
(ii) reach factually supported conclusions consistent with
the terms of the Employee Welfare Plans;
(iii) make a full and fair review of each claim denial and
decision related to the provision of benefits provided or arranged for
under the Employee Welfare Plans, pursuant to the requirements of
ERISA, if within sixty days after receipt of the notice of denial, a
claimant requests in writing a review for reconsideration of such
decisions. The plan administrator shall notify the claimant in
writing of its decision on review. Such notice shall satisfy all
ERISA requirements relating thereto; and
(iv) notify the claimant in writing of its decision on
review.
Section 4.3. Limitation of Liability. (a) Abercrombie & Fitch
agrees that none of the Limited Entities and their respective directors,
officers, agents, and employees (each, a "Limited Indemnified Person") shall
have any liability, whether direct or indirect, in contract or tort or
otherwise, to any Abercrombie & Fitch Entity or any other Person for or in
connection with the Services rendered or to be rendered by any Limited
Indemnified Person pursuant to this Agreement, the transactions contemplated
hereby or any Limited Indemnified Person's actions or inactions in connection
with any such Services or transactions, except for damages which have resulted
from such Limited Indemnified Person's gross negligence or willful misconduct
in connection with any such Services, actions or inactions.
(b) None of the Limited Entities shall be liable for any special,
indirect, incidental, or consequential damages of any kind whatsoever
(including, without limitation, attorneys' fees) in any way due to, resulting
from or arising in connection with any of the Services or the performance of
or failure to perform The Limited's obligations under this Agreement. This
disclaimer applies without limitation (i) to claims arising from the provision
of the Services or any failure or delay in connection therewith; (ii) to
claims for lost profits; (iii) regardless of the form of action, whether in
contract, tort (including negligence), strict liability, or otherwise; and (iv)
regardless of whether such damages are foreseeable or whether The Limited has
been advised of the possibility of such damages.
(c) None of the Limited Entities shall have any liability to any
Abercrombie & Fitch Entity or any other Person for failure to perform The
Limited's obligations under this Agreement or otherwise, where (i) such
failure to perform is not caused by the gross negligence or wilful misconduct
of the Limited Entity providing such Services and (ii) such failure to perform
similarly affects the Limited Entities receiving such Services and does not
have a disproportionately adverse effect on the Abercrombie & Fitch Entities,
taken as a whole.
(d) In addition to the foregoing, Abercrombie & Fitch agrees that
it shall, in all circumstances, use commercially reasonable efforts to
mitigate and otherwise minimize its damages and those of the other Abercrombie
& Fitch Entities, whether direct or indirect, due to, resulting from or
arising in connection with any failure by The Limited to comply fully with its
obligations under this Agreement.
Section 4.4. Indemnification of The Limited by Abercrombie &
Fitch. Abercrombie & Fitch agrees to indemnify and hold harmless each Limited
Indemnified Person from and against any damages, and to reimburse each Limited
Indemnified Person for all reasonable expenses as they are incurred in
investigating, preparing, pursuing, or defending any claim, action,
proceeding, or investigation, whether or not in connection with pending or
threatened litigation and whether or not any Limited Indemnified Person is a
party (collectively, "Actions"), arising out of or in connection with Services
rendered or to be rendered by any Limited Indemnified Person pursuant to this
Agreement, the transactions contemplated hereby or any Limited Indemnified
Person's actions or inactions in connection with any such Services or
transactions; provided that Abercrombie & Fitch will not be responsible for
any damages of any Limited Indemnified Person that have resulted from such
Limited Indemnified Person's gross negligence or willful misconduct in
connection with any of the advice, actions, inactions, or Services referred to
above.
Section 4.5. Indemnification of Abercrombie & Fitch by The
Limited. The Limited agrees to indemnify and hold harmless the Abercrombie &
Fitch Entities and their respective directors, officers, agents, and employees
(each, a "Abercrombie & Fitch Indemnified Person") from and against any
damages, and will reimburse each Abercrombie & Fitch Indemnified Person for
all reasonable expenses as they are incurred in investigating, preparing, or
defending any Action, arising out of the gross negligence or willful
misconduct of any Limited Indemnified Person in connection with the Services
rendered or to be rendered pursuant to this Agreement.
Section 4.6. Further Indemnification. To the extent that any
other Person has agreed to indemnify any Limited Indemnified Person or to hold
a Limited Indemnified Person harmless and such Person provides services to The
Limited or any affiliate of The Limited relating directly or indirectly to any
employee plan or benefit arrangement for which Benefit Services are provided
under this Agreement, The Limited will exercise reasonable efforts (a) to make
such agreement applicable to any Abercrombie & Fitch Indemnified Person so
that each Abercrombie & Fitch Indemnified Person is held harmless or
indemnified to the same extent as any Limited Indemnified Person or (b)
otherwise make available to each Abercrombie & Fitch Indemnified Person the
benefits of such agreement.
Section 4.7. Notice of Certain Matters. If Abercrombie &
Fitch at any time believes that The Limited is not in full compliance with its
obligations under Section 4.1 of this Agreement, Abercrombie & Fitch shall so
notify The Limited in writing promptly (but not later than 30 days) after
becoming aware of such possible non-compliance by The Limited. Such notice (a
"Non-Compliance Notice") shall set forth in reasonable detail the basis for
Abercrombie & Fitch's belief as well as Abercrombie & Fitch's view as to the
steps to be taken by The Limited to address the possible non-compliance. For
the 30 days after receipt of such a notice, appropriate representatives of The
Limited and Abercrombie & Fitch shall work in good faith to develop a plan to
resolve the matters referred to in the Non-Compliance Notice. In the event
such matters are not resolved through such discussions, Abercrombie & Fitch
may elect to terminate The Limited's obligation to provide or procure, and its
obligation to purchase, the Service or Services referred to in its
Non-Compliance Notice in accordance with Section 5.2, but if it does not elect
to terminate such Service or Services within 60 days of the end of the 30-day
period referred to in the immediately preceding sentence, Abercrombie & Fitch
shall not be entitled to deliver another Non-Compliance Notice or pursue other
remedies with respect to same or any substantially similar matter.
ARTICLE 5
Term and Termination
Section 5.1. Term. Except as otherwise provided in this
Article 5, in Section 7.5 or as otherwise agreed in writing by the parties,
(a) this Agreement shall have a term of three years from the Effective Date
and (b) The Limited's obligation to provide or procure, and Abercrombie &
Fitch's obligation to purchase, a Service shall cease as of the applicable
date set forth in the applicable Schedules or such earlier date determined in
accordance with Section 5.2.
Section 5.2. Termination. (a) Abercrombie & Fitch may (i)
from time to time terminate this Agreement with respect to one or more of the
Services, in whole or in part, upon giving at least 30 days' prior notice to
The Limited or (ii) terminate this Agreement at any time upon 30 days'
written notice.
(b) The Limited may terminate any Service at any time if
Abercrombie & Fitch shall have failed to perform any of its material
obligations under this Agreement relating to any such Service, The Limited has
notified Abercrombie & Fitch in writing of such failure and such failure shall
have continued for a period of 30 days after receipt of Abercrombie & Fitch of
written notice of such failure.
(c) Abercrombie & Fitch may terminate any Service at any time if
The Limited shall have failed to perform any of its material obligations under
this Agreement relating to any such Service, Abercrombie & Fitch has notified
The Limited in writing of such failure, and such failure shall have continued
for a period of 30 days after receipt by The Limited of written notice of such
failure.
Section 5.3. Effect of Termination. (a) Other than as
required by law, upon termination of any Service pursuant to Section 5.2, and
upon termination of this Agreement in accordance with its terms, The Limited
will have no further obligation to provide the terminated Service (or any
Service, in the case of termination of this Agreement) and Abercrombie & Fitch
will have no obligation to pay any fees relating to such Services or make any
other payments hereunder; provided that notwithstanding such termination, (i)
Abercrombie & Fitch shall remain liable to The Limited for fees owed and
payable in respect of Services provided prior to the effective date of the
termination; (ii) The Limited shall continue to charge Abercrombie & Fitch for
administrative and program costs relating to benefits paid after but incurred
prior to the termination of any Service and other services required to be
provided after the termination of such Service and Abercrombie & Fitch shall be
obligated to pay such expenses in accordance with the terms of this Agreement;
and (iii) the provisions of Articles 4, 5, 6 and 7 shall survive any such
termination indefinitely. All program and administrative costs attributable
to associates of any of the Abercrombie & Fitch Entities for The Limited Plans
that relate to any period after the effective date of any such termination
shall be for the account of Abercrombie & Fitch.
(b) Following termination of this Agreement with respect to any
Service, The Limited and Abercrombie & Fitch agree to cooperate in providing
for an orderly transition of such Service to Abercrombie & Fitch or to a
successor service provider. Without limiting the foregoing, The Limited
agrees to (i) provide, within 30 days of the termination, copies in a format
designated by The Limited, of all records relating directly or indirectly to
benefit determinations of Abercrombie & Fitch associates, including but not
limited to compensation and service records, correspondence, plan interpretive
policies, plan procedures, administration guidelines, minutes, or any data or
records required to be maintained by law and (ii) work with Abercrombie &
Fitch in developing a transition schedule.
ARTICLE 6
Additional Agreements
Section 6.1. Confidential Information. (a) Abercrombie &
Fitch and The Limited hereby covenant and agree to hold in trust and maintain
confidential all Confidential Information relating to the other party or any
of such other party's Subsidiaries. Without limiting the generality of the
foregoing, Confidential Information relating to a party or any of its
Subsidiaries shall be disclosed only to those associates of the other party
who need to know such information in connection with their ordinary course
employment activities and in no event shall any such Confidential Information
be disclosed to any other Person. "Confidential Information" shall mean all
information, materials and processes relating to a party or any Subsidiary of
such party obtained by the other party or any Subsidiary of such other party at
any time (whether prior to or after the date hereof and whether in connection
with this Agreement or otherwise) in any format whatsoever (whether orally,
visually, in writing, electronically or in any other form) and shall include,
but not be limited to, economic and business information or data, business
plans, computer software and information relating to associates, vendors,
customers, products, fashion, design, stores, financial performance and
projections, processes, strategies, systems and real estate, but shall not
include (i) information which becomes generally available other than by
release in violation of the provisions of this Section 6.1, (ii) information
which becomes available on a non-confidential basis to a party from a source
other than the other party to this Agreement, provided the party in question
reasonably believes that such source is not or was not bound to hold such
information confidential and (iii) information acquired or developed
independently by a party without violating this Section 6.1 or any other
confidentiality agreement with the other party. Notwithstanding any provision
of this Section 6.1 to the contrary, a party may disclose such portion of the
Confidential Information relating to the other party to the extent, but only
to the extent, the disclosing party reasonably believes that such disclosure
is required under law or the rules of a securities exchange; provided that the
disclosing party first notifies the other party hereto of such requirement and
allows such party a reasonable opportunity to seek a protective order or other
appropriate remedy to prevent such disclosure. The parties acknowledge that
money damages would not be a sufficient remedy for any breach of the
provisions of this Section 6.1 and that the non-breaching party shall be
entitled to equitable relief in a court of law in the event of, or to prevent,
a breach or threatened breach of this Section 6.1.
(b) Notwithstanding the provisions of Section 6.1(a), upon a
Change of Control, Abercrombie & Fitch shall (i) promptly (but in no event
later than 30 days after the occurrence of such Change of Control) return to
The Limited or destroy all Confidential Information in its possession (or that
of any of its Subsidiaries) relating to The Limited or any of its Subsidiaries,
(ii) no longer be permitted to use such Confidential Information in its
business or operations (or the business or operations of any of its
Subsidiaries) and (iii) promptly (but in no event later than 30 days after the
occurrence of such Change of Control) deliver a written certificate to The
Limited executed by Abercrombie & Fitch's Chief Executive Officer expressly
acknowledging the obligations set forth in clauses (i) and (ii) of this
sentence and certifying that Abercrombie & Fitch has and will continue to
adhere to such requirements.
Section 6.2. Associate Matters. For so long as any operations
of Abercrombie & Fitch or of any of its Subsidiaries are located in any of The
Limited's facilities and for one year thereafter, each of The Limited and
Abercrombie & Fitch agrees that it will not, and will cause each of its
Subsidiaries not to, directly or indirectly, (i) solicit or otherwise attempt
to induce or influence any associate of the other party (or any of its
Subsidiaries) to leave employment with his or her then-current employer or
(ii) employ any associate of the other party (or any of its Subsidiaries).
Section 6.3. Financial Support Arrangements. (a) Abercrombie
& Fitch agrees to cooperate reasonably with any efforts undertaken by The
Limited or any of its Subsidiaries intended to release The Limited and its
Subsidiaries from their obligations under any guarantees (including, without
limitation, guarantees of lease obligations), letters of credit, surety bonds
and other financial support arrangements maintained as of the date hereof by
The Limited or any of its Subsidiaries in connection with the business or
operations of Abercrombie & Fitch or any of its Subsidiaries (collectively,
the "Financial Support Arrangements").
(b) If, after the date hereof, (i) any amounts are drawn on or
paid under any Financial Support Arrangement by The Limited or any of its
Subsidiaries or (ii) The Limited or any of its Subsidiaries pays any fees,
costs or expenses relating to any Financial Support Arrangement, Abercrombie &
Fitch shall reimburse The Limited for such amounts promptly after receipt from
The Limited of notice thereof accompanied by written evidence of the
underlying payment obligation.
Section 6.4. Insurance Matters. (a) From and after the date
of this Agreement, The Limited shall not, and shall cause each of its
Subsidiaries not to, take or fail to take any action if such action or
inaction, as the case may be, would adversely affect the applicability of any
insurance in effect on the date of this Agreement that covers all or any part
of the assets, liabilities, business or employees of Abercrombie & Fitch or
any Subsidiary of Abercrombie & Fitch with respect to events occurring prior
to the Effective Date ("Applicable Insurance"), it being understood that in no
event shall The Limited or any Subsidiary of The Limited be obligated to pay
premiums with respect to periods after the Effective Date in respect of
Applicable Insurance.
(b) The Limited agrees that, from and after the Effective Date,
all Applicable Insurance directly or indirectly applicable to any assets,
liabilities, business or employees of Abercrombie & Fitch or any Subsidiary of
Abercrombie & Fitch shall be for the benefit of Abercrombie & Fitch and the
Subsidiaries of Abercrombie & Fitch, it being understood that such Applicable
Insurance shall also be for the benefit of The Limited and its Subsidiaries to
the extent directly or indirectly applicable to any assets, liabilities,
business or employees of The Limited or any of its Subsidiaries. Without
limiting the generality of the foregoing, from and after the Effective Date
and upon Abercrombie & Fitch's reasonable request, The Limited shall use its
reasonable efforts to modify, amend or assign all Applicable Insurance
policies and arrangements so that Abercrombie & Fitch is the direct
beneficiary of such Applicable Insurance with all rights to enforce, obtain
the benefit of and take all other action in respect of such Applicable
Insurance; provided that, if the modifications, amendments or assignments
contemplated by this Section 6.4(b) are not permissible, The Limited shall,
and shall cause each of its Subsidiaries to, use its reasonable efforts to
enter into such other arrangements as Abercrombie & Fitch may reasonably
request to ensure that Abercrombie & Fitch and the Subsidiaries of Abercrombie
& Fitch are entitled to the benefit (to the fullest extent set forth in the
relevant policies and arrangements) of any Applicable Insurance.
ARTICLE 7
Miscellaneous
Section 7.1. Prior Agreements. In the event there is any
conflict between the provisions of this Agreement, on the one hand, and
provisions of prior services agreements among any Limited Entity and any of
the Abercrombie & Fitch businesses (the "Prior Agreements"), on the other
hand, the provisions of this Agreement shall govern and such provisions in the
Prior Agreements are deemed to be amended so as to conform with this Agreement.
Section 7.2. Future Litigation and Other Proceedings. In the
event that Abercrombie & Fitch (or any of its Subsidiaries or any of its or
their officers or directors) or The Limited (or any of its Subsidiaries or any
of its or their officers or directors) at any time after the date hereof
initiates or becomes subject to any litigation or other proceedings before any
governmental authority or arbitration panel with respect to which the parties
have no prior agreements (as to indemnification or otherwise), the party (and
its Subsidiaries and its and their officers and directors) that has not
initiated and is not subject to such litigation or other proceedings shall
comply, at the other party's expense, with any reasonable requests by the
other party for assistance in connection with such litigation or other
proceedings (including by way of provision of information and making available
of employees as witnesses). In the event that Abercrombie & Fitch (or any of
its Subsidiaries or any of its or their officers or directors) and The Limited
(or any of its Subsidiaries or any of its or their officers or directors) at
any time after the date hereof initiate or become subject to any litigation or
other proceedings before any governmental authority or arbitration panel with
respect to which the parties have no prior agreements (as to indemnification or
otherwise), each party (and its officers and directors) shall, at their own
expense, coordinate their strategies and actions with respect to such
litigation or other proceedings to the extent such coordination would not be
detrimental to their respective interests and shall comply, at the expense of
the requesting party, with any reasonable requests of the other party for
assistance in connection therewith (including by way of provision of
information and making available of employees as witnesses).
Section 7.3. No Agency. Nothing in this Agreement shall
constitute or be deemed to constitute a partnership or joint venture between
the parties hereto or, except to the extent provided in Section 4.2,
constitute or be deemed to constitute any party the agent or employee of the
other party for any purpose whatsoever and neither party shall have authority
or power to bind the other or to contract in the name of, or create a
liability against, the other in any way or for any purpose.
Section 7.4. Subcontractors. The Limited may hire or engage
one or more subcontractors to perform all or any of its obligations under this
Agreement; provided that, subject to Section 4.3, The Limited will in all
cases remain primarily responsible for all obligations undertaken by it in
this Agreement with respect to the scope, quality and nature of the Services
provided to Abercrombie & Fitch.
Section 7.5. Force Majeure. (a) For purposes of this Section,
"force majeure" means an event beyond the control of either party, which by
its nature could not have been foreseen by such party, or, if it could have
been foreseen, was unavoidable, and includes without limitation, acts of God,
storms, floods, riots, fires, sabotage, civil commotion or civil unrest,
interference by civil or military authorities, acts of war (declared or
undeclared) and failure of energy sources.
(b) Without limiting the generality of Section 4.3(a), neither
party shall be under any liability for failure to fulfill any obligation under
this Agreement, so long as and to the extent to which the fulfillment of such
obligation is prevented, frustrated, hindered, or delayed as a consequence of
circumstances of force majeure; provided that such party shall have exercised
all due diligence to minimize to the greatest extent possible the effect of
force majeure on its obligations hereunder.
(c) Promptly on becoming aware of force majeure causing a delay in
performance or preventing performance of any obligations imposed by this
Agreement (and termination of such delay), the party affected shall give
written notice to the other party giving details of the same, including
particulars of the actual and, if applicable, estimated continuing effects of
such force majeure on the obligations of the party whose performance is
prevented or delayed. If such notice shall have been duly given, and actual
delay resulting from such force majeure shall be deemed not to be a breach of
this Agreement, and the period for performance of the obligation to which it
relates shall be extended accordingly; provided that if force majeure results
in the performance of a party being delayed by more than 60 days, the other
party shall have the right to terminate this Agreement with respect to any
Service effected by such delay forthwith by written notice.
Section 7.6. Entire Agreement. This Agreement (including the
Schedules constituting a part of this Agreement) and any other writing signed
by the parties that specifically references this Agreement constitute the
entire agreement among the parties with respect to the subject matter hereof
and supersede all prior agreements, understandings and negotiations, both
written and oral, between the parties with respect to the subject matter
hereof. This Agreement is not intended to confer upon any Person other than
the parties hereto any rights or remedies hereunder.
Section 7.7. Information. Subject to applicable law and
privileges, each party hereto covenants and agrees to provide the other party
with all information regarding itself and transactions under this Agreement
that the other party reasonably believes are required to comply with all
applicable federal, state, county and local laws, ordinances, regulations and
codes, including, but not limited to, securities laws and regulations.
Section 7.8. Notices. Any notice, instruction, direction or
demand under the terms of this Agreement required to be in writing will be
duly given upon delivery, if delivered by hand, facsimile transmission,
intercompany mail, or mail, to the following addresses:
(a) If to Abercrombie & Fitch, to:
Abercrombie & Fitch Co.
Four Limited Parkway
Reynoldsburg, OH 43068
Attention: Seth R. Johnson
Fax: 614-577-6950
(b) If to The Limited, to:
The Limited, Inc.
Three Limited Parkway
Columbus, OH 43230
Attention: Samuel P. Fried
Fax: 614-415-7199
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Attention: David L. Caplan
Fax: 212-450-4800
or to such other addresses or telecopy numbers as may be specified by like
notice to the other parties.
Section 7.9. Governing Law. This Agreement shall be construed
in accordance with and governed by the substantive internal laws of the State
of Delaware.
Section 7.10. Dispute Resolution. Subject to Sections 6.1 and
6.2, the parties hereto agree that any dispute arising out of or in connection
with this Agreement or the transactions contemplated hereby shall be submitted
to arbitration. The parties shall negotiate in good faith and use all
reasonable efforts to agree upon a resolution of any dispute after receipt of
written notice of such dispute from a party. If the parties cannot agree on
an amicable settlement within 30 days from written submission of the matter by
the party to the other party, the matter shall be submitted to arbitration.
Each party shall select one arbitrator, and the two arbitrators so appointed
shall select a third arbitrator. In the event such arbitrators cannot agree
upon a third arbitrator, a third arbitrator shall be selected in accordance
with the rules as then in effect of the American Arbitration Association. The
decision of two of the three arbitrators so appointed shall be conclusive and
binding upon the parties to this Agreement. Any such arbitration shall be
held in Columbus, Ohio under the rules to be mutually agreed upon by the
arbitrators selected by the parties or, if no such agreement can be reached,
under the rules as then in effect of the American Arbitration Association.
Each party to any such arbitration shall pay its own expenses; provided that
the fees, costs and expenses of the third arbitrator shall be borne equally by
the parties.
Section 7.11. WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 7.12. Severability. If any provision of this
Agreement shall be invalid or unenforceable, such invalidity or
unenforceability shall not render the entire Agreement invalid. Rather, the
Agreement shall be construed as if not containing the particular invalid or
unenforceable provision, and the rights and obligations of each party shall be
construed and enforced accordingly.
Section 7.13. Amendment. This Agreement may only be amended
by a written agreement executed by both parties hereto.
Section 7.14. Counterparts. This Agreement may be executed in
separate counterparts, each of which shall be deemed an original and all of
which, when taken together, shall constitute one agreement.
Section 7.15. Services to The Limited. Abercrombie & Fitch
agrees to permit the Limited Entities to use the trademarks and service marks
owned by the Abercrombie & Fitch Entities at no cost to any Limited Entity in
The Limited's annual reports to shareholders for fiscal years 1997 and 1998 and
publicity materials and for other similar purposes through the end of fiscal
year 1998.
Section 7.16. Termination of Old Services Agreement.
Effective as of the date hereof, The Limited's obligation to provide or
procure, and Abercrombie & Fitch's obligation to purchase, services under the
Old Services Agreement shall terminate automatically without any further
action by any party.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be signed by their duly authorized representatives.
ABERCROMBIE & FITCH CO.
By:
-------------------------
Name:
Title:
THE LIMITED, INC.
By:
-------------------------
Name:
Title:
Human Resources and Benefits Services - Schedule I
The Limited's obligation to provide or procure, and Abercrombie
& Fitch's obligation to purchase, the services described in this Schedule
shall terminate three months after the Effective Date.
Service Billing Methodology
- ------- -------------------
Medical/Dental Programs
Benefits/Claims Customary Billing
- ---------------
o Claims costs for Abercrombie &
Fitch Associates participating in
the following Limited Plans and
programs:
o Medical Plan
o Short Term Disability Plan
o Prescription Drug Plan
o Dental Plan
Administration Customary Billing
- --------------
o Administration of above
Abercrombie & Fitch plans and
programs, including
o maintenance of eligibility
files upon Abercrombie &
Fitch's notification of status
changes
o claim adjudication under the
terms of applicable plans
o maintenance of toll-free
telephone lines for inquiries,
etc.
o support services (internal and
external, including COBRA)
Participant Contributions
- -------------------------
o Participant contributions for Participant
deductions above plans or direct Payroll
bill to associates/retirees
Other Benefit Plans
Life Insurance Customary Billing
- --------------
o Life insurance for Abercrombie &
Fitch Associates (including
Accidental Death and
Dismemberment)
Savings/Retirement Plans
- ------------------------
o Company match/retirement Customary Billing
contribution
o Participant Contributions Payroll Deduction
Long-Term Disability Plans
- --------------------------
o Employer contributions Customary Billing
o Associate contributions Payroll Deduction
Other Benefit Support Services Customary Billing
o Audit, Legal, Actuarial Fees and
related recoveries
o Payroll support of benefits
administration (insurance,
savings, other benefit plans and
statutory requirements)
Employee Stock Purchase Program Customary Billing
o Payroll services
Information Technology Service - Schedule II
The Limited's obligation to provide or procure, and Abercrombie
& Fitch's obligation to purchase, the services described in this Schedule
shall terminate on the first anniversary of the Effective Date. The costs for
the services on this Schedule shall be billed using the Customary Billing
method.
Data Center Services
Computing services consistent with services provided to Abercrombie & Fitch in
the past, including:
o providing the following operating environments:
o MVS environment at or above the current release of MVS SP6.0.3
o Hardware environment to execute the MVS operating system described
above
o IBM CICS environments for Test and Production applications at or
above the current release of 2.1 and 4.1, respectively
o providing the following software:
o IBM Database 12, Version 5.1
o IBM TSO/ISPF, release 4.4
o IBM VSAM and IDCAMS software
o IBM ADDCOM, NDM, PNMS and GIX for store polling support
o Compuware File-Aid software, release 8.0.1
o SAS Institute Base SAS, release 6.09
o Maintain scheduling software to run the production job streams.
o Balance job streams as a means of controlling production applications.
o Maintain current print distribution by DC4 operations.
o Provide monitoring reports for Abercrombie & Fitch I.T. management.
o Provide data transmission to other entities. ( e.g., banks).
o Maintain the Abercrombie & Fitch Polling modems in the DC3 data center.
o Maintain hardware for tape and DASD support.
o Maintain current connectivity to the SNA network at the Abercrombie &
Fitch offices in Reynoldsburg.
o Sufficient spool capacity for reports to laser and impact printers.
o Maintain storage libraries for Abercrombie & Fitch to store Test and
Production source code and object code, including ADCSLIB, ASM,
COBOL, CNTL, PROCLIB, COPYLIB, MAPLIB, PARMLIB, SAS, VSAM and DOC
libraries.
Year 2000 Services
o Maintain a testing environment consistent with other Limited Inc.
businesses for compliance testing of MVS systems.
o Allow Abercrombie & Fitch to complete work under the Limited Project
Management Office towards meeting ITAA standards for Year 2000.
Technical Services
o Technical support for physical data in DB/2 and VSAM.
o Technical support for SNA and VTAM.
o Technical support for system usage. ( i.e. new users, RACF ID's).
Telecommunications Services
o Provide move/add/change services to Reynoldsburg offices
o Maintain telecom switch and connections to Ameritech and MCI.
Point-of-Sale Help Desk Services
o Provide the current point-of-sale help desk support from Limited
stores at or above current levels.
Distribution Center Services - Schedule III
The Limited's obligation to provide or procure, and Abercrombie
& Fitch's obligation to purchase, the services described in this Schedule
shall terminate on the third anniversary of the Effective Date. The following
merchandise will not be commingled with other Limited Inc. businesses without
the prior written approval of Abercrombie & Fitch. The costs for the services
on this Schedule shall be billed using the Customary Billing method, except as
otherwise indicated.
Labor Services
The Limited's Distribution Center is to provide a fully dedicated management
staff with the ability to obtain and provide full-time, part-time and
temporary help on an as-needed basis to perform the following processes:
o Receive goods using current methodology, including the following:
o A sample of receipts pre-counted.
o Receipts "key-received" and data entered into the Abercrombie &
Fitch warehouse system.
o Samples of merchandise receipts selected for inspection.
o Receipts extracted to either be warehoused in backstock or
processed to stores as determined by the distribution methodology
of Abercrombie & Fitch.
o Handle receipts that require special handling such as ticketing,
re-ticketing, sorting, quality inspection, marketing applied, etc. in
the same manner as exists currently.
o Process merchandise to stores in accordance with the allocation
methodology of Abercrombie & Fitch.
o Handle procedures for handling color, size or unit differences
from the allocation specified by Abercrombie & Fitch in accordance
with existing Abercrombie & Fitch procedures.
o Data enter merchandise allocation pick cards once a store carton
has been filled.
o Cycle count warehoused merchandise with the goal of cycling through
the Abercrombie & Fitch merchandise once each quarter.
o New store merchandise to be sensor-tagged by the distribution center
prior to shipment.
o Magazine merchandise to be poly-bagged by the distribution center
prior to shipment.
o Ship completed cartons with appropriate store labels through Limited
Distribution Services, Inc. ("LDS") to final destination.
o In cases where LDS is not used, ship completed cartons with
appropriate store labels through a carrier approved by Abercrombie &
Fitch to final destination.
Supplies
All purchases for the distribution center to remain the responsibility of the
landlord. The current procedure of tracking Abercrombie & Fitch supply
purchases through purchase orders to remain in effect.
Engineering Services
Provide use of Limited's engineering services for the purposes of distribution
center and home office modifications within the Limited campuses as well as
design, site selection, construction and other services necessary to enable
Abercrombie & Fitch to design and construct its own distribution center and
office facility to move to upon the expiration this Agreement.
Fixtures
o It is understood that the Abercrombie & Fitch Distribution Center is
scheduled to relocate from its current facility to an other facility
owned by The Limited, with such relocation to be effected on or prior
to September 1, 1998. In connection with such relocation, The
Limited will purchase on Abercrombie & Fitch's behalf (with
Abercrombie & Fitch to reimburse The Limited promptly for all such
purchases) hangers, racks and other equipment (the "Distribution
Center Equipment") required to operate such new Distribution Center
in the manner agreed by Abercrombie & Fitch and The Limited prior to
the date hereof. It is understood that the cost of such hangers,
racks and other equipment is expected to be approximately $8 million.
o The Limited shall have the option (but not the obligation) to
purchase the Distribution Center Equipment relating to any portion of
the Distribution Center occupied by Abercrombie & Fitch, in whole or
in part, upon the termination of Abercrombie & Fitch's occupancy of
such portion of the Distribution Center, at Net Book Value. "Net
Book Value" of any Distribution Center Equipment shall mean the net
book value of such equipment, calculated in accordance with generally
accepted accounting principles using the normal asset lives (seven
to ten years) of such Distribution Center Equipment. The Limited
must provide written notice of its desire to exercise such option (i)
15 days after receipt by The Limited of written notice from
Abercrombie & Fitch of its desire to terminate early its lease or
sublease relating to its Distribution Center and home office premises
or (ii) 30 days prior to the scheduled termination of such lease or
sublease. Any Distribution Center Equipment which is not purchased
by The Limited shall be dismantled and removed from the leased
Distribution Center premises by Abercrombie & Fitch at its sole cost
upon the termination of its occupancy of such premises.
o Except for the arrangements with respect to the Distribution Center
Equipment set forth above, all further capital improvements to the
Distribution Center shall be the sole responsibility of Abercrombie &
Fitch.
o In the event of a Change of Control involving a Person which competes
with any current business of The Limited or any of its Subsidiaries,
The Limited and Abercrombie & Fitch will work in good faith and use
their reasonable best efforts to develop a plan whereby Abercrombie &
Fitch relocate from any facilities owned by The Limited as promptly
after the Change of Control as is reasonably practicable.
Transportation Services Agreement - Schedule IV
The Limited's obligation to provide or procure, and Abercrombie
& Fitch's obligation to purchase, the services described in this Schedule
shall terminate on the earlier to occur of (i) the third anniversary of the
Effective Date and (ii) the date on which Abercrombie & Fitch no longer
utilizes a distribution center located on a facility owned by The Limited or
any of its Subsidiaries. It is understood that The Limited's obligation to
provide or procure the services referred to in this Schedule IV is limited to
the provision or procurement of such services in distribution centers located
on a facility owned by The Limited or any of its Subsidiaries.
Transportation and Logistic Services Billing Methodology
to be Provided by Limited Distribution
Services, Inc. ("LDS")
o Transport merchandise from a foreign Pass-Through Billing
factory to Abercrombie & Fitch's
Columbus, Ohio distribution center
(the "Distribution Center"),
including the following:
o Continue to negotiate price
arrangements with certain
carriers to transport merchandise
from an overseas designated FOB
point to the Distribution Center.
o Continue to monitor and enforce
the selected carriers' negotiated
performance standards.
o Allow Abercrombie & Fitch access
to the LDS "LIFTS" freight
tracking system to track both
Abercrombie & Fitch and MAST
deliveries.
o Continue to negotiate rates and
service levels for Container
Freight Stations ("CFS") who
receive bonded freight in
Columbus, Ohio for delivery to
the Distribution Center.
o Continue to monitor and enforce
the CFS' negotiated performance
standards.
o Transport merchandise from the Customary Billing
Distribution Center to Abercrombie &
Fitch store locations, including the
following:
o Continue to arrange outbound
ground transportation from the
Distribution Center to
Abercrombie & Fitch store
locations.
o Negotiate price for all ground
carriers used to transport
merchandise to final destination.
o Transport merchandise from domestic Pass-Through Billing
factories to the Distribution
Center, including the following:
o Negotiate rates for carriers to
retrieve merchandise from
domestic factory locations and
deliver that merchandise to the
Distribution Center.
o Ensure availability of LDS
carriers to transport merchandise
between Abercrombie & Fitch
stores. Carrier rates to be
negotiated by LDS.
Store Planning Services - Schedule V
The Limited's obligation to provide or procure, and Abercrombie
& Fitch's obligation to purchase, the services described in this Schedule
shall terminate on the first anniversary of the Effective Date. The Limited
and Abercrombie & Fitch agree that the capitalized construction costs for the
services described in this Schedule shall be billed upon the completion of the
construction of a store, and that Abercrombie & Fitch shall pay such costs for
each store within 30 days after the opening of such store. Costs for services
other than capitalized construction costs shall be billed in accordance with
the Customary Billing Methodology.
Store Planning Services to be provided Billing Methodology
by Limited Store Planning
Limited Store Planning, Inc. ("LSP") Customary Billing
will provide the following services to
Abercrombie & Fitch for Abercrombie &
Fitch stores to be opened or remodeled
in 1998:
o Initial design of space
o Production of architectural and
mechanical drawings of the store
design
o Construction of store to drawing
specifications
o Purchasing, shipment, and
installation of materials
o Project management and accumulation
of capital costs
o Assisting Abercrombie & Fitch as
necessary in the transition of
responsibility from LSP to
Abercrombie & Fitch, including the
transfer of following:
o Store design plans
o Project management software
o Information pertaining to
contractors, suppliers, and other
non-Limited resources used in the
design and construction of
Abercrombie & Fitch stores
Real Estate Services - Schedule VI
The Limited's obligation to provide or procure, and Abercrombie
& Fitch's obligation to purchase, the services described in this Schedule
shall terminate on the first anniversary of the Effective Date. The costs for
the services on this Schedule shall be billed using the Customary Billing
method.
Real Estate Services to be provided by Limited Real Estate
Limited Real Estate ("LRE") will provide the following services to Abercrombie
& Fitch:
o Complete necessary deal follow-up and legal work for all deals in
process at the Effective Date.
o Provide Abercrombie & Fitch with the following:
o Leasing files, center maps, leasing plans and contact person
information for:
o all existing Abercrombie & Fitch locations.
o the top 600 centers.
o premier specialty centers.
o The Limited's list of developers, corporate offices, contacts,
phone numbers, etc.
o Copies of PCR's and ROA's for all existing and approved
Abercrombie & Fitch deals.
o Copies, including disc copies, if applicable, of existing form
leases with developers and Limited form leases.
o Copies of all Abercrombie & Fitch leases.
o Current version of the in-house developed real estate system and
data.
o Allow Abercrombie & Fitch to participate in the consolidated utility
management system related to deregulation.
Tax Services- Schedule VII
The Limited's obligation to provide or procure, and Abercrombie
& Fitch's obligation to purchase, the services described in this Schedule
shall terminate no later than the filing due date for the income tax returns
of Abercrombie & Fitch for fiscal year 1998. The costs for the services on
this Schedule shall be billed using the Customary Billing method.
The Limited will:
o provide assistance and coordinate with outside tax accountants and
professional as is reasonably necessary for the preparation and filing
of the following income tax returns of Abercrombie & Fitch:
o federal consolidated income tax returns for the tax periods ending
on or before January 30, 1999.
o combined and separate state income or franchise tax returns for
tax periods ending on or before January 30, 1999.
o assist Abercrombie & Fitch in preparing tax packages and determining
the amount of estimated income tax installments for the federal and
state income taxes for the tax periods described above.
o assist Abercrombie & Fitch to the extent necessary in the transition
of tax responsibility from The Limited to Abercrombie &Fitch, by
o providing access to various tax resources of The Limited, including
tax library, tax software and tax personnel;
o allowing a designated Abercrombie & Fitch person to observe, learn
and participate in the planning, preparation and filing of
Abercrombie &Fitch income tax returns described above; and
o providing tax planning services regarding Abercrombie & Fitch's
income taxes for the tax periods described above.
EXHIBIT 10.6
FORM OF
AMENDMENT TO SUBLEASE AGREEMENT
This amendment to the Sublease Agreement dated June 11, 1995
(the "Sublease Agreement") between Victoria's Secret Stores, Inc., a Delaware
corporation (hereinafter referred to as "Landlord") and Abercrombie & Fitch Co.,
a Delaware corporation (hereinafter referred to as "Tenant") is entered into and
made as of the _____ day of _________________, 1998, by and between the Landlord
and the Tenant.
W I T N E S S E T H:
WHEREAS, Landlord has leased from Distribution Land Corp., a
Delaware corporation ("DLC"), a certain office/warehouse distribution facility
containing approximately 951,798 square feet of floor space, identified on
Exhibit A attached to the Sublease Agreement (the "Building"), pursuant to the
terms of that certain Building Lease Agreement between Landlord and DLC dated as
of June 1, 1995 (the "Building Lease"); and
WHEREAS, the Building is located upon an approximately 321.1
acre parcel of land located at the intersection of East Broad Street (State
Route 16) and Taylor Road, Reynoldsburg, Ohio, which land is depicted on Exhibit
A attached to the Sublease Agreement (the "Campus"); and
WHEREAS, Landlord subleased to Tenant a portion of the Building
as more particularly described in the Sublease Agreement (the "Premises") and
granted to Tenant the right to utilize certain common areas and facilities
located within the Building and the Campus, all subject to the terms and
conditions of the Sublease Agreement and the Building Lease; and
WHEREAS, Landlord and Tenant desire to amend the Sublease
Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the premises described above
and the mutual promises set forth herein, Landlord and Tenant, intending to be
legally bound, hereby agree as follows:
Section 1. Definitions. Any capitalized terms not defined
herein shall have the meanings ascribed to them in the Sublease Agreement.
Section 2. Amendments. Effective as of the date hereof, the
parties agree that the Sublease Agreement shall be amended as follows:
(a) Section 1.02.C(ii) shall be deleted and replaced with the following:
"(ii) The space within the Premises is further depicted on the
floor plan attached hereto as Exhibit B and made a part
hereof by this reference, and consists of the following
approximate number of square feet: 271,617 (consisting
of 70,320 square feet of office space and 201,297 square
feet of distribution space)"
(b) Section 1.02.D shall be deleted and replaced with the following:
"D. Term: Six (6) years, beginning on June 1, 1995 (the
"Commencement Date") and ending on May 31, 2001 (the
"Expiration Date")"
(c) Section 1.02.E(i) shall be deleted and replaced with the following:
"(i) Office space - $11.00 per square feet, or $773,520.00"
(d) Section 1.02.E(iii) shall be deleted and replaced with the
following:
"(iii) Total Annual Base Rent (for distribution and office
space) of $1,347,216.45"
(e) Section 1.02.F shall be deleted and replaced with the following:
"F. Monthly Installments of Base Rent (for distribution and
office space): $112,268.04"
(f) Section 1.02.G and Section 3.05 shall be deleted in their entirety.
(g) Exhibit B shall be deleted and replaced with the new Exhibit B
attached hereto.
Section 3. No Other Modifications. Except as amended hereby,
the Sublease Agreement shall remain unchanged and the Sublease Agreement as
amended shall remain in full force and effect.
Section 4. Governing Law. This Amendment shall be construed
and enforced in accordance with the laws of the State of Ohio.
Section 5. Successors and Assigns. This Amendment and the
respective rights and obligations of the parties hereto shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto,
as well as the parties themselves.
Section 6. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original and said
counterparts shall together constitute one and the same instrument, binding all
of the parties hereto, notwithstanding all of the parties are not signatory to
the original or the same counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
Witnesses as to Landlord: LANDLORD:
VICTORIA'S SECRET STORES, INC., a
Delaware corporation
________________________________ By: ______________________________
Print Name:_____________________ Name:
Title:
- --------------------------------
Print Name:_____________________ ATTESTED BY:
- -------------------------------- ----------------------------------
Print Name:_____________________ Name:
Title:
- --------------------------------
Print Name:_____________________
Witnesses as to Tenant: TENANT:
ABERCROMBIE & FITCH, INC.,
a Delaware corporation
________________________________ By: _____________________________
Print Name:_____________________ Name:
Title:
- --------------------------------
Print Name:_____________________ ATTESTED BY:
- -------------------------------- ---------------------------------
Print Name:_____________________ Name:
Title:
- --------------------------------
Print Name:_____________________
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this ____ day of
____________, 1998, by __________________ and __________________,
______________, respectively, of Victoria's Secret Stores, Inc., a Delaware
corporation, on behalf of the corporation.
---------------------------------
Notary Public
[Notarial Seal]
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this _____ day of
____________, 1998, by ______________________ and ____________________,
___________________, respectively, of Abercrombie & Fitch, Inc., a Delaware
corporation, on behalf of the corporation.
---------------------------------
Notary Public
[Notarial Seal]
Exhibit 23.1
[LETTERHEAD OF COOPERS & LYBRAND L.L.P.]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this Registration Statement of Form S-4 (File
No. 333-46423) of our report dated February 20, 1998, on our audits of the
consolidated financial statements of The Limited, Inc. as of January 31, 1998
and February 1, 1997, and for the years ended January 31, 1998, February 1,
1997 and February 3, 1996. We also consent to the reference to our Firm under
the caption "Experts".
/s/ Coopers & Lybrand L.L.P.
------------------------------
Coopers & Lybrand L.L.P.
Columbus, Ohio
April 7, 1998
Exhibit 23.2
[LETTERHEAD OF COOPERS & LYBRAND L.L.P.]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this Registration Statement of Form S-4 (File
No. 333-46423) of our report dated February 20, 1998, on our audits of the
consolidated financial statements of Abercrombie & Fitch Co. as of January 31,
1998 and February 1, 1997, and for the years ended January 31, 1998, February
1, 1997, and February 3, 1996. We also consent to the reference to our Firm
under the caption "Experts".
/s/ Coopers & Lybrand L.L.P.
-------------------------------
Coopers & Lybrand L.L.P.
Columbus, Ohio
April 7, 1998
EXHIBIT 99.01
LETTER OF TRANSMITTAL
To Accompany Certificates of
Common Stock of
THE LIMITED, INC.
Tendered pursuant to the Offering Circular-Prospectus dated ____________, 1998
THE EXCHANGE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON ___________, 1998, UNLESS THE EXCHANGE OFFER IS
EXTENDED.
To: First Chicago Trust Company of New York, Exchange Agent
<TABLE>
<S> <C> <C>
If by mail: If by hand: If by overnight delivery:
First Chicago Trust Company First Chicago Trust Company First Chicago Trust Company
of New York of New York of New York
Tenders & Exchanges Tenders & Exchanges Tenders & Exchanges
Suite 4660 c/o The Depository Trust Company Suite 4680
P.O. Box 2569 55 Water Street, DTC TAD 14 Wall Street, 8th Floor
Jersey City, New Jersey Vietnam Veterans Memorial Plaza New York, New York
07303-2569 New York, New York 10041 10005
</TABLE>
If by facsimile transmission:
(For Eligible Institutions only)
(201) 222-4720
or
(201) 222-4721
Facsimile confirmation number:
(201) 222-4707
BY COMPLETING THE BOX BELOW AND SIGNING THIS LETTER OF TRANSMITTAL, YOU
WILL HAVE TENDERED SHARES OF LIMITED COMMON STOCK REPRESENTED BY THE
CERTIFICATE(S) DESCRIBED BELOW. PLEASE READ THE ACCOMPANYING INSTRUCTIONS
CAREFULLY BEFORE COMPLETING THIS LETTER OF TRANSMITTAL.
Box #1
<TABLE>
<CAPTION>
DESCRIPTION OF CERTIFICATE(S)
---------------------------------------------------------------------------------------------------
Number of
Name(s) and Address(es) of Registered Holder(s) Shares Number of
(Please fill in, if blank, exactly as name(s) Certificate Represented By Shares
appear(s) on stock certificate(s)) Number(s)(*) Certificate(s)(*) Tendered(**)
----------------------------------------------- ------------ ----------------- ------------
<S> <C> <C> <C>
TOTAL
</TABLE>
* Need not be completed by Book-Entry Holders (see below).
** Unless otherwise indicated in this column, you will be deemed to have
tendered all of the shares of Limited Common Stock represented by the
certificate(s) indicated in the first column. See Instruction 2 below.
DELIVERY OF THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
LIMITED STOCKHOLDERS SHOULD READ THE ENTIRE LETTER OF
TRANSMITTAL CAREFULLY. HOWEVER,
YOUR ATTENTION IS INVITED IN PARTICULAR TO THE FOLLOWING:
1. If you want to retain your Limited Common Stock, you do not need to take
any action.
2. If you want to participate in the Exchange Offer and wish to maximize
the chance of having The Limited accept for exchange all the shares of Limited
Common Stock you are tendering hereby, you should check the box marked "SHARES
TENDERED AT EXCHANGE RATIO DETERMINED BY DUTCH AUCTION" in Box #2 below and
complete the other portions of this Letter of Transmittal as appropriate.
3. If you wish to select a specific Exchange Ratio at which you will be
tendering your shares of Limited Common Stock, you should select one of the
boxes in the section captioned "SHARES TENDERED AT EXCHANGE RATIO DETERMINED BY
STOCKHOLDER" in Box #2 below and complete the other portions of this Letter of
Transmittal as appropriate.
IN ANY EVENT, YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM.
THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE OFFERING
CIRCULAR-PROSPECTUS OR THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE
INFORMATION AGENT AT THE ADDRESS OR TOLL-FREE NUMBER INDICATED ON PAGE 23.
LADIES AND GENTLEMEN:
Reference is made to the Offering Circular-Prospectus dated __________,
1998 (the "Offering Circular-Prospectus"), of The Limited, Inc. ("The Limited"),
and this Letter of Transmittal which together constitute The Limited's offer
(the "Exchange Offer") to exchange up to 43,600,000 shares of Class A common
stock, par value $.01 per share (the "A&F Common Stock"), of Abercrombie & Fitch
Co. ("A&F"), for shares of common stock, par value $.50 per share (the "Limited
Common Stock"), of The Limited that are validly tendered by the Expiration Date
and not withdrawn or deemed withdrawn, at an Exchange Ratio not greater than
____ nor less than ______ of a share of A&F Common Stock for each share of
Limited Common Stock tendered, upon the terms and subject to the conditions set
forth herein and in the Offering Circular-Prospectus. See "Summary", "The
Transactions" and "The Exchange Offer" in the Offering Circular-Prospectus.
Capitalized terms used herein have the same meanings as in the Offering
Circular-Prospectus.
The Exchange Offer, proration period and withdrawal rights will expire at
12:00 Midnight, New York City time, on __________, 1998 (the "Expiration Date"),
unless extended in accordance with applicable law and the terms of the Exchange
Offer, in which event the term "Expiration Date" shall mean the latest time and
date at which the Exchange Offer, as extended, shall expire.
Upon the terms and subject to the conditions of the Exchange Offer, I
hereby tender to you the shares of Limited Common Stock represented by the
certificate(s) described in Box #1 above. Subject to, and effective upon, the
acceptance for exchange of such tendered shares of Limited Common Stock, I
hereby sell, assign and transfer to you, or upon your order, all right, title
and interest in and to such shares. I hereby irrevocably constitute and appoint
the Exchange Agent as my true and lawful agent and attorney-in-fact (with full
knowledge that the Exchange Agent also acts as your agent) with respect to such
tendered shares of Limited Common Stock, with full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest) (i) to deliver stock certificates representing such tendered shares of
Limited Common Stock or transfer ownership of such shares on the account books
maintained by The Depository Trust Company (the "Book-Entry Transfer Facility"),
together, in any such case, with all accompanying evidences of transfer and
authenticity, to you or upon your order, upon receipt by the Exchange Agent, as
my agent, of shares of A&F Common Stock, to which I am entitled upon the
acceptance for exchange by you of such tendered shares of Limited Common Stock;
(ii) to present certificate(s) representing such tendered shares of Limited
Common Stock for transfer on your books; and (iii) to receive all benefits and
otherwise exercise all rights of beneficial ownership of such shares, all in
accordance with the terms of the Exchange Offer. If my tendered shares of
Limited Common Stock are accepted for exchange, I will be entitled to receive
certificates representing shares of A&F Common Stock ("A&F Certificates").
I hereby represent and warrant to you that I have full power and authority
to tender, sell, assign and transfer the shares of Limited Common Stock that I
have tendered and that when such shares are accepted by you for exchange
pursuant to the Exchange Offer, you will acquire good, marketable and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances, and that none of such shares of Limited Common Stock will be
subject to any adverse claim when you accept such shares for exchange. I will,
upon request, execute and deliver any additional documents deemed by the
Exchange Agent or you to be necessary or desirable to complete the sale,
assignment and transfer of the shares of Limited Common Stock that I have
tendered. All authority conferred or agreed to be conferred in this Letter of
Transmittal and all of my obligations hereunder shall be binding upon my
successors, assigns, heirs, executors, administrators, trustees in bankruptcy
and legal representatives and shall not be affected by, and shall survive, my
death or incapacity. This tender may be withdrawn only in accordance with the
procedures set forth in the Offering Circular-Prospectus and the Instructions
contained in this Letter of Transmittal.
I understand that the maximum number of shares of Limited Common Stock
which will be accepted for exchange will be that number of shares which, when
multiplied by the Final Exchange Ratio, equals 43,600,000 shares of A&F Common
Stock. I understand that if more than such maximum number of shares of Limited
Common Stock are tendered at Exchange Ratios at or below the Final Exchange
Ratio, the Exchange Offer will be oversubscribed, and shares of Limited Common
Stock tendered at or below the Final Exchange Ratio will be subject to proration
in accordance with the terms set forth in the Offering Circular-Prospectus under
"The Exchange Offer--Terms of the Exchange Offer". I understand that, upon
acceptance by you of the shares of Limited Common Stock that I have tendered, I
will be deemed to have accepted the shares of A&F Common Stock exchanged
therefor and will be deemed to have relinquished all rights with respect to the
accepted shares of Limited Common Stock.
I recognize that, under certain circumstances and subject to certain
conditions to the Exchange Offer (which you may waive) set forth in the Offering
Circular-Prospectus, you may not be required to accept for exchange any of the
shares of Limited Common Stock that I have tendered (including any shares of
Limited Common Stock tendered after the Expiration Date). Shares of Limited
Common Stock delivered to the Exchange Agent and not accepted for exchange will
be returned to me as promptly as practicable following expiration or termination
of the Exchange Offer at the address set forth on the cover page of this Letter
of Transmittal under "Description of Certificate(s)" (Box #1) unless otherwise
indicated under "Special Delivery Instructions" (Box #6) below.
I understand that you will, upon the terms and subject to the conditions of
the Exchange Offer, conduct the Exchange Offer as a modified "Dutch auction" in
which each Limited stockholder has the opportunity to pick an Exchange Ratio
within the Exchange Ratio Range (in increments of __________) at which he or she
is willing to exchange some or all of his or her Limited Common Stock for shares
of A&F Common Stock. I understand that a "Dutch auction" is a competitive bid
between me and other Limited stockholders where the Final Exchange Ratio is the
lowest bid which would permit the maximum number of the shares of A&F Common
Stock owned by The Limited to be exchanged in the Exchange Offer. I also
understand that if I wish to maximize the chance of having The Limited accept
for exchange all of the shares of Limited Common Stock I am tendering (subject
to the possiblity of proration), I am entitled to indicate that I am willing to
accept the Exchange Ratio determined by the "Dutch auction" process. See "Box #
2". I understand that all shares of Limited Common Stock properly tendered at
Exchange Ratios at or below the Final Exchange Ratio and not withdrawn prior to
the Expiration Date will be exchanged at the Final Exchange Ratio, upon the
terms and subject to the conditions of the Exchange Offer, including its
proration provisions, and that you will return all shares not exchanged pursuant
to the Exchange Offer, including shares tendered and not withdrawn prior to the
Expiration Date at Exchange Ratios greater than the Final Exchange Ratio and
shares not exchanged because of proration. If proration of tendered shares of
Limited Common Stock is required, I understand that you do not expect to be able
to announce the final proration factor or to commence delivery of any shares of
A&F Common Stock pursuant to the Exchange Offer until approximately seven
business days after the Expiration Date.
Unless otherwise indicated under "Special Issuance Instructions" (Box #5)
below, please issue (i) the A&F Certificate(s) to which I am entitled, (ii) if
applicable, a check in lieu of a fractional share equal to such fraction
multiplied by the average gross selling price per share, net of commissions, of
A&F Common Stock obtained by the Exchange Agent upon the sale of all fractional
shares on behalf of those tendering stockholders of The Limited otherwise
entitled to receive fractional shares (a "Fractional Share Check"), and (iii) if
applicable, the certificate(s) representing any shares of Limited Common Stock
not tendered by me or any tendered shares that are not accepted for exchange, in
each case in the name(s) of the registered holder(s) shown on the cover page of
this Letter of Transmittal under "Description of Certificate(s)" (Box #1).
Unless otherwise indicated in the box entitled "Special Delivery Instructions"
(Box #6) below, please send (i) the A&F Certificate(s) to which I am entitled,
(ii) if applicable, a Fractional Share Check, in each case issued in the name(s)
of the registered holder(s) shown on the cover page of this Letter of
Transmittal under "Description of Certificate(s)" (Box #1), and (iii) if
applicable, the certificate(s) representing any shares of Limited Common Stock
not tendered by me or any shares tendered herewith and not accepted for exchange
by you (and accompanying documents, as appropriate), in each case to the
address(es) of the registered holder(s) shown on the cover page of this Letter
of Transmittal under "Description of Certificate(s)" (Box #1). Any shares of
Limited Common Stock delivered by book-entry transfer that are not tendered or
any shares tendered herewith delivered by book-entry transfer that are not
accepted for exchange will be credited to the account at the Book-Entry Transfer
Facility. I recognize that you have no obligation pursuant to the "Special
Issuance Instructions" to transfer any shares of Limited Common Stock from the
name of the registered holder(s) hereof if you do not accept for exchange such
shares. If Boxes #5 and #6 entitled "Special Issuance Instructions" and "Special
Delivery Instructions" are both completed, please issue (i) the A&F
Certificate(s) to which I am entitled, (ii) if applicable, a Fractional Share
Check, and (iii) if applicable, the certificate(s) representing any shares of
Limited Common Stock not tendered by me or any tendered shares that are not
accepted for exchange, in each case in the name(s) of, and mail such
certificate(s) and check (and accompanying documents, as appropriate) to, the
person(s) so indicated.
I understand that the delivery and surrender of the shares of Limited
Common Stock that I have tendered is not effective, and the risk of loss of the
shares of Limited Common Stock (including shares of Limited Common Stock
tendered herewith) does not pass to the Exchange Agent, until receipt by the
Exchange Agent of this Letter of Transmittal, or a manually signed facsimile
hereof, duly completed and signed, or an Agent's Message (as defined in the
Offering Circular-Prospectus under "The Exchange Offer--Procedures for Tendering
Shares of Limited Common Stock") in connection with a book-entry transfer of
shares, together with all accompanying evidences of authority in form
satisfactory to you and any other required documents. All questions as to the
form of documents (including notices of withdrawal) and the validity, form,
eligibility (including time of receipt) and acceptance for exchange of any
tender of shares of Limited Common Stock will be determined by you in your sole
discretion and such determination shall be final and binding upon all tendering
stockholders.
I understand that a tender of shares of Limited Common Stock made pursuant
to any method of delivery set forth in the Offering Circular-Prospectus and your
acceptance for exchange of such shares pursuant to the procedures described in
the Offering Circular-Prospectus under "The Exchange Offer--Procedures for
Tendering Shares of Limited Common Stock" and in the Instructions hereto will
constitute a binding agreement between us upon the terms and subject to the
conditions of the Exchange Offer, including my representation that (i) I own the
shares of Limited Common Stock being tendered within the meaning of Rule 14e-4
promulgated under the Exchange Act, and (ii) the tender of such shares of
Limited Common Stock complies with Rule 14e-4.
-----------------------
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE CHECKING ANY BOX BELOW
This Letter of Transmittal is to be used by tendering stockholders if
either (i) the certificate(s) representing shares of Limited Common Stock are to
be forwarded herewith or, unless an Agent's Message is utilized, if tenders are
to be made by book-entry transfer to the account maintained by the Exchange
Agent at the Book-Entry Transfer Facility or (ii) guaranteed delivery procedures
are being used, according to the procedures set forth in the Offering
Circular-Prospectus under "The Exchange Offer--Guaranteed Delivery Procedure".
Delivery of documents to the Book-Entry Transfer Facility in accordance with its
procedures does not constitute delivery to the Exchange Agent as required by the
Offering Circular-Prospectus.
Holders of Limited Common Stock will receive that fraction of a share of
A&F Common Stock represented by the Final Exchange Ratio for each share of
Limited Common Stock accepted for exchange. A holder of shares of Limited Common
Stock wishing to tender portions of his or her holdings of Limited Common Stock
at different Exchange Ratios must complete a separate Letter of Transmittal for
each Exchange Ratio at which he or she wishes to tender such portion of his or
her shares of Limited Common Stock.
Participants in The Limited's Stock Purchase Plan or Savings and Retirement
Plan may not use this Letter of Transmittal to tender shares of Limited Common
Stock held in either Plan. Instead, participants in these Plans must use the
separate election forms which will be sent separately.
-----------------------
Box #2
THE FOLLOWING MUST BE COMPLETED BY ALL TENDERING STOCKHOLDERS.
CHECK ONLY ONE BOX.
IF MORE THAN ONE BOX IS CHECKED OR IF NO BOX IS
CHECKED, THERE IS NO PROPER TENDER OF SHARES OF
LIMITED COMMON STOCK.
SHARES TENDERED AT EXCHANGE RATIO
DETERMINED BY DUTCH AUCTION
|_| I want to maximize the chance of having The Limited accept for exchange
all the shares of Limited Common Stock I am tendering (subject to the
possibility of proration). Accordingly, by checking this one box INSTEAD
OF ONE OF THE EXCHANGE RATIO BOXES BELOW, I hereby tender shares of
Limited Common Stock at, and am willing to accept, the Exchange Ratio
resulting from the Dutch auction tender process. This action could result
in receiving an Exchange Ratio as low as ___ of a share of A&F Common
Stock per share of Limited Common Stock.
OR
SHARES TENDERED AT EXCHANGE RATIO
DETERMINED BY STOCKHOLDER
[ ] _______ [ ] _______ [ ] _______ [ ] _______ [ ] _______
[ ] _______ [ ] _______ [ ] _______ [ ] _______ [ ] _______
[ ] _______ [ ] _______ [ ] _______ [ ] _______ [ ] _______
[ ] _______ [ ] _______ [ ] _______ [ ] _______ [ ] _______
[ ] _______ [ ] _______ [ ] _______ [ ] _______ [ ] _______
[ ] _______ [ ] _______ [ ] _______ [ ] _______ [ ] _______
Box #3
THE FOLLOWING MUST BE COMPLETED ONLY IF SHARES OF LIMITED COMMON STOCK HELD IN
THE LIMITED'S DIVIDEND REINVESTMENT PLAN ARE TO BE TENDERED. See Instruction 6.
|_| By checking this box, I represent that I am a participant in The
Limited's Dividend Reinvestment Plan and hereby instruct the Plan
Administrator to tender on my behalf the following number of shares of
Limited Common Stock credited to my Dividend Reinvestment Plan
account(s) at the Exchange Ratio indicated in Box #2 of this Letter of
Transmittal:
____ shares*
* I understand and agree that all shares of Limited Common Stock held in
my Dividend Reinvestment Plan account(s) will be tendered if the above
box is checked and the space above is left blank.
Box #4
THE FOLLOWING MUST BE COMPLETED BY ALL TENDERING STOCKHOLDERS.
|_| CHECK HERE IF THE CERTIFICATE(S) REPRESENTING TENDERED SHARES OF LIMITED
COMMON STOCK ARE ENCLOSED HEREWITH.
|_| CHECK HERE IF TENDERED SHARES OF LIMITED COMMON STOCK ARE BEING DELIVERED
BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT
WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:____________________________________________
Account Number at Book-Entry Transfer Facility:___________________________
Transaction Code Number:__________________________________________________
|_| CHECK HERE IF THE CERTIFICATE(S) REPRESENTING TENDERED SHARES OF LIMITED
COMMON STOCK ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING
(See Instruction 1):
Name(s) of Registered Holder(s):__________________________________________
Date of Execution of Notice of Guaranteed Delivery:_______________________
Window Ticket No. (if any):_______________________________________________
Name of Institution that Guaranteed Delivery:_____________________________
If delivered by Book-Entry Transfer,
Account Number at Book-Entry Transfer Facility:___________________________
Transaction Code Number:__________________________________________________
THE FOLLOWING MUST BE COMPLETED BY TENDERING STOCKHOLDERS
WHO HAVE SPECIAL ISSUANCE OR DELIVERY INSTRUCTIONS.
Box #5
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 4 and 5)
To be completed ONLY if shares of Limited Common Stock not tendered or any
shares of Limited Common Stock not accepted for exchange, A&F Certificate(s)
and/or any Fractional Share Check issued in connection therewith are to be
issued in the name of someone other than the undersigned.
Issue:
(check appropriate box(es)):
|_| A&F Certificate(s) to:
|_| Fractional Share Check to:
|_| Limited Common Stock certificate(s) to:
Name(s):_______________________________________________________________________
(Please Print)
_______________________________________________________________________________
(Please Print)
Address:_______________________________________________________________________
Zip code
_________________________________________________
Employer Identification or Social Security Number
Box #6
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4 and 5)
To be completed ONLY if shares of Limited Common Stock not tendered or any
shares of Limited Common Stock not accepted for exchange, A&F Certificate(s)
and/or any Fractional Share Check issued in connection therewith are to be sent
to someone other than the undersigned, or to the undersigned at an address other
than that shown in the box entitled "Description of Certificate(s)" on the cover
page of this Letter of Transmittal.
Mail:
(check appropriate box(es)):
|_| A&F Certificate(s) to:
|_| Fractional Share Check to:
|_| Limited Common Stock certificate(s) to:
Name(s):_______________________________________________________________________
(Please Print)
_______________________________________________________________________________
(Please Print)
Address:_______________________________________________________________________
Zip code
Box #7
THE FOLLOWING MUST BE COMPLETED BY ALL TENDERING STOCKHOLDERS.
IMPORTANT--PLEASE SIGN HERE
(Please Complete Substitute Form W-9 on Reverse)
(See Instructions 1 and 4)
X______________________________________________________________________________
X______________________________________________________________________________
Signature(s) of Owner(s)
In the case of tendering stockholders, this Letter of Transmittal must be signed
by the registered holder(s) as the name(s) appear(s) on the Limited Common Stock
certificate(s) or on a security position listing or by person(s) authorized to
become registered holder(s) by endorsements and documents transmitted herewith.
If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, please set forth full title. See Instruction 4.
Name(s):_______________________________________________________________________
_______________________________________________________________________________
(Please Print)
Capacity:______________________________________________________________________
Address:_______________________________________________________________________
(Include Zip Code)
Area Code and Telephone No.:___________________________________________________
Date:________________________________________________, 1998
Box #8
THE FOLLOWING MUST BE COMPLETED BY TENDERING
STOCKHOLDERS WHO ARE REQUIRED TO PROVIDE SIGNATURE
GUARANTEES. See Instructions 1 and 4.
SIGNATURE GUARANTEE
FOR USE BY ELIGIBLE INSTITUTIONS ONLY.
PLACE MEDALLION GUARANTEE IN SPACE BELOW.
Signature(s) Guaranteed by an Eligible Institution:____________________________
(Authorized Signature)
Name:__________________________________________________________________________
(Please Print)
Title:_________________________________________________________________________
Name of Firm:__________________________________________________________________
Address:_______________________________________________________________________
(Include Zip Code)
Area Code and Telephone No.:___________________________________________________
Date:_________________________________________________, 1998
Box #9
THE FOLLOWING MUST BE COMPLETED ONLY IF A SOLICITING DEALER FEE IS TO BE PAID
IN CONNECTION WITH THIS TENDER. See Instruction 10.
NOTICE OF SOLICITED TENDERS
|_| By checking this box, I represent that my tender was affirmatively
solicited by the Soliciting Dealer listed below:
Name of Firm:__________________________________________________________________
(Please Print)
Name of Individual Broker or Financial Consultant:_____________________________
Identification Number (if known):______________________________________________
Address:_______________________________________________________________________
(Include Zip Code)
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Delivery of this Letter of Transmittal and Limited Common Stock
Certificate(s)
This Letter of Transmittal is to be completed by stockholders if either (i)
the certificate(s) representing shares of Limited Common Stock tendered herewith
are to be forwarded herewith or, unless an Agent's Message is utilized, if
tenders are to be made pursuant to the procedures for book-entry transfer set
forth in the Offering Circular-Prospectus under "The Exchange Offer--Procedures
for Tendering Shares of Limited Common Stock" or (ii) the shares of Limited
Common Stock will be tendered pursuant to the guaranteed delivery procedures set
forth in the Offering Circular-Prospectus under "The Exchange Offer--Guaranteed
Delivery Procedure". The certificate(s) representing shares of Limited Common
Stock tendered herewith, or confirmation of any book-entry transfer into the
Exchange Agent's account at the Book-Entry Transfer Facility of shares of
Limited Common Stock tendered electronically, as well as a properly completed
and duly executed copy of this Letter of Transmittal or a manually signed
facsimile hereof, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at one of its addresses set
forth herein prior to the Expiration Date. THE METHOD OF DELIVERY OF THIS LETTER
OF TRANSMITTAL, THE CERTIFICATE(S) REPRESENTING SHARES OF LIMITED COMMON STOCK
TENDERED HEREWITH AND ANY OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND RISK OF
THE TENDERING STOCKHOLDER, BUT, EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY
WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED OR CONFIRMED BY THE EXCHANGE
AGENT. IF CERTIFICATE(S) REPRESENTING SHARES OF LIMITED COMMON STOCK TENDERED
HEREWITH ARE SENT BY MAIL IT IS RECOMMENDED THAT TENDERING STOCKHOLDERS USE
REGISTERED MAIL, RETURN RECEIPT REQUESTED AND ALLOW SUFFICIENT TIME TO ENSURE
TIMELY RECEIPT.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
No alternative, conditional or contingent tenders will be accepted for
exchange in the Exchange Offer. All tendering stockholders, by execution of this
Letter of Transmittal or a manually signed facsimile hereof, waive any right to
receive any notice of the acceptance of their shares of Limited Common Stock for
exchange.
Holders whose stock certificate(s) representing shares of Limited Common
Stock are not immediately available or who cannot complete the procedure for
delivery by book-entry transfer on a timely basis or who cannot deliver their
certificate(s) and all other required documents to the Exchange Agent prior to
the Expiration Date may tender their shares of Limited Common Stock pursuant to
the guaranteed delivery procedure set forth in the Offering Circular-Prospectus
under "The Exchange Offer--Guaranteed Delivery Procedure". Pursuant to such
procedure: (i) such tender must be made by or through a participant in the
Security Transfer Agents Medallion Program or the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(an "Eligible Institution"); (ii) prior to the Expiration Date, the Exchange
Agent must have received from such Eligible Institution a properly completed and
duly executed Notice of Guaranteed Delivery substantially in the form provided
by The Limited setting forth the name and address of the holder and the number
of shares of Limited Common Stock tendered, stating that the tender is being
made thereby and guaranteeing that, within three business days after the date of
the Notice of Guaranteed Delivery, the certificate(s) representing the shares of
Limited Common Stock accompanied by all other documents required by this Letter
of Transmittal will be deposited by the Eligible Institution with the Exchange
Agent; and (iii) the certificate(s) representing the shares of Limited Common
Stock tendered herewith (or a confirmation of a book-entry transfer of such
shares of Limited Common Stock into the Exchange Agent's account at the
Book-Entry Transfer Facility as described above), together with a properly
completed and duly executed Letter of Transmittal (or a manually signed
facsimile hereof) and any required signature guarantees, or an Agent's Message
in connection with a book-entry transfer, and any other documents required
hereby, must be received by the Exchange Agent within three business days after
the date of the Notice of Guaranteed Delivery, all as provided in the Offering
Circular-Prospectus under "The Exchange Offer--Guaranteed Delivery Procedure".
2. Partial Tenders (Not Applicable to Stockholders who Tender by Book-Entry
Transfer); Withdrawals
If less than all the shares of Limited Common Stock evidenced by any
certificate(s) are to be tendered, the tendering holder should fill in the
number of shares to be tendered in the part of Box #1 entitled "Number of Shares
Tendered". A reissued certificate representing the number of shares of Limited
Common Stock not tendered will be issued in the name of, and sent to, such
registered holder, unless otherwise indicated under "Special Issuance
Instructions" (Box #5) or "Special Delivery Instructions" (Box #6) above, as
soon as practicable after the Expiration Date. THE ENTIRE NUMBER OF SHARES OF
LIMITED COMMON STOCK REPRESENTED BY ANY CERTIFICATE(S) DELIVERED TO THE EXCHANGE
AGENT WILL BE DEEMED TO HAVE BEEN TENDERED UNLESS OTHERWISE INDICATED.
Any tendering holder of shares of Limited Common Stock may withdraw the
tender at any time prior to the Expiration Date, and may also withdraw such
tender after the expiration of 40 business days from the commencement of the
Exchange Offer, unless theretofore accepted for exchange as provided in the
Offering Circular-Prospectus.
To be effective, a written, telegraphic or facsimile transmission notice of
withdrawal must be timely received by the Exchange Agent at one of its addresses
set forth above and must comply with the requirements set forth in the Offering
Circular-Prospectus under "The Exchange Offer--Withdrawal Rights". Withdrawals
may not be rescinded, and shares of Limited Common Stock withdrawn will
thereafter be deemed not validly tendered for purposes of the Exchange Offer.
However, withdrawn shares of Limited Common Stock may be retendered by again
following one of the procedures described in the Offering Circular-Prospectus
under the caption "The Exchange Offer--Procedures for Tendering Shares of
Limited Common Stock" at any time prior to the Expiration Date.
3. Indication of Exchange Ratio at which Shares of Limited Common Stock are
being Tendered
For shares of Limited Common Stock to be properly tendered, the holder of
shares of Limited Common Stock MUST check either (i) the box within Box #2
indicating his or her willingness to accept the Exchange Ratio determined by
Dutch auction in the box entitled "Shares Tendered at Exchange Ratio Determined
by Dutch Auction" or (ii) the box within Box #2 indicating the fraction of a
share of A&F Common Stock that he or she is willing to receive in exchange for a
share of Limited Common Stock in the box entitled "Shares Tendered at Exchange
Ratio Determined by Stockholder". Tenders at an Exchange Ratio selected by the
tendering stockholder may only be made in increments of _____. ONLY ONE BOX MAY
BE CHECKED. IF MORE THAN ONE BOX IS CHECKED OR IF NO BOX IS CHECKED, THERE IS NO
PROPER TENDER OF SHARES OF LIMITED COMMON STOCK. A holder of shares of Limited
Common Stock wishing to tender portions of his or her Limited Common Stock at
different Exchange Ratios must complete a separate Letter of Transmittal for
each Exchange Ratio at which he or she wishes to tender such portion of his or
her Limited Common Stock. The same shares of Limited Common Stock cannot be
tendered (unless previously properly withdrawn as provided in the Offering
Circular-Prospectus under the caption "The Exchange Offer--Withdrawal Rights")
at more than one Exchange Ratio. Holders of shares of Limited Common Stock who
wish to maximize the chance that their shares will be exchanged at the relevant
Final Exchange Ratio may check the box within Box #2 marked "Shares Tendered at
Exchange Ratio Determined by Dutch Auction". Checking this box may result in an
Exchange Ratio equal to the Minimum Exchange Ratio of ____ of a share of A&F
Common Stock per share of Limited Common Stock.
4. Signatures on this Letter of Transmittal; Stock Powers and Endorsements;
Guarantee of Signatures
If this Letter of Transmittal is signed by the registered holder(s) of the
shares of Limited Common Stock tendered hereby, the signature(s) must correspond
exactly with the name(s) as written on the face of the certificate(s)
representing the shares of Limited Common Stock without alteration, enlargement
or any other change whatsoever.
If any of the shares of Limited Common Stock tendered hereby are registered
in the name of two or more joint owners, all such owners must sign this Letter
of Transmittal.
If any tendered shares of Limited Common Stock are registered in the names
of different holders, it will be necessary to complete, sign and submit as many
separate copies of this Letter of Transmittal as there are different
registrations of certificates.
If this Letter of Transmittal is signed by the registered holder(s) of the
shares of Limited Common Stock listed and tendered hereby, no endorsements of
certificates or separate stock powers are required, unless A&F Certificate(s)
are to be issued, or certificate(s) for any untendered shares of Limited Common
Stock or for any shares of Limited Common Stock not accepted for exchange are to
be reissued, in the name of a person other than the registered holder(s), in
which case, the stock certificate(s) evidencing the shares of Limited Common
Stock tendered hereby must be endorsed or accompanied by appropriate stock
power(s), in either case, signed exactly as the name(s) of the registered
holder(s) appear(s) on such stock certificate(s). Signatures on such stock
certificate(s) and stock power(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the shares of Limited Common Stock listed and tendered
hereby, the certificate(s) representing such shares of Limited Common Stock must
be endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name(s) of the registered holder(s) appear(s) on such
certificate(s), and such signatures must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal or any certificates or stock powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of a corporation or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and proper evidence
satisfactory to The Limited of their authority so to act must be submitted.
Signatures on this Letter of Transmittal must be guaranteed by an Eligible
Institution unless the shares of Limited Common Stock are tendered: (i) by a
registered holder of such shares of Limited Common Stock (which term, for
purposes of this Letter of Transmittal, shall include any participant in the
Book-Entry Transfer Facility whose name appears on a security position listing
as the owner of shares of Limited Common Stock) who has not completed the box
entitled "Special Issuance Instructions" (Box #5) or "Special Delivery
Instructions" (Box #6) of this Letter of Transmittal; or (ii) for the account of
an Eligible Institution.
5. Special Issuance and Delivery Instructions
Tendering holders should indicate in the box entitled "Special Issuance
Instructions" (Box #5) or "Special Delivery Instructions" (Box #6), as
applicable, the name and address to which A&F Certificate(s), a Fractional Share
Check, if any, and/or substitute certificate(s) for shares of Limited Common
Stock not tendered or any shares of Limited Common Stock not accepted for
exchange are to be issued or sent, if different from the name and address of the
person signing this Letter of Transmittal. In the case of issuance in a
different name, the employer identification or social security number of the
person named must also be indicated.
6. Participants in the Dividend Reinvestment Plan of The Limited
If a tendering stockholder desires to have tendered pursuant to the
Exchange Offer shares of Limited Common Stock credited to the stockholder's
account under The Limited's Dividend Reinvestment Plan, Box #3 should be
completed. A participant in the Dividend Reinvestment Plan wishing to tender
portions of such participant's shares of Limited Common Stock in the Dividend
Reinvestment Plan at different prices must complete a separate Letter of
Transmittal for each price at which such participant wishes to tender each such
portion of such participant's shares.
If a stockholder authorizes a tender of shares of Limited Common Stock held
in the Dividend Reinvestment Plan, all such shares credited to such
stockholder's account(s), including fractional shares, will be tendered, unless
otherwise specified in the appropriate space in Box #3. In the event that Box #3
is not completed, no shares of Limited Common Stock held in the tendering
stockholder's account will be tendered.
PARTICIPANTS IN THE STOCK PURCHASE PLAN OR THE SAVINGS AND RETIREMENT PLAN
OF THE LIMITED MAY NOT USE THIS LETTER OF TRANSMITTAL TO DIRECT THE TENDER OF
SHARES OF LIMITED COMMON STOCK, BUT MUST USE THE SEPARATE ELECTION FORM SENT TO
THEM.
7. Stock Transfer Taxes
The Limited will pay all stock transfer taxes, if any, payable on the
transfer to it of shares of Limited Common Stock and the transfer to tendering
stockholders of shares of A&F Common Stock pursuant to the Exchange Offer. If,
however, the exchange of shares is to be made to, or (in the circumstances
permitted by the Exchange Offer) if shares of Limited Common Stock that are not
tendered or not accepted for exchange are to be registered in the name of or
delivered to any person other than the registered owner, or if tendered
certificates are registered in the name of any person other than the person
signing this Letter of Transmittal, the amount of all stock transfer taxes, if
any (whether imposed on the registered owner or such other person), payable on
account of the transfer to such person must be paid by the tendering stockholder
unless evidence satisfactory to The Limited of the payment of such taxes or
exemption therefrom is submitted.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the certificate(s) representing shares of
Limited Common Stock listed in this Letter of Transmittal.
8. Mutilated, Lost, Stolen or Destroyed Limited Common Stock Certificates
If any certificate representing shares of Limited Common Stock has been
mutilated, destroyed, lost or stolen, the stockholder must (i) furnish to the
Exchange Agent evidence, satisfactory to it in its discretion, of the ownership
of and the destruction, loss or theft of such certificate, (ii) furnish to the
Exchange Agent indemnity, satisfactory to it in its discretion, and (iii) comply
with such other reasonable requirements as the Exchange Agent may prescribe. Any
holder whose stock certificate representing shares of Limited Common Stock has
been mutilated, destroyed, lost or stolen should promptly contact the Exchange
Agent at the address indicated above for further instructions.
9. Questions and Requests for Assistance or Additional Copies
Questions relating to the procedure for tendering, as well as requests for
assistance or additional copies of the Offering Circular-Prospectus, this Letter
of Transmittal or the Notice of Guaranteed Delivery, may be directed to the
Information Agent at the address indicated below. Additional copies of the
Offering Circular-Prospectus, this Letter of Transmittal or the Notice of
Guaranteed Delivery may also be obtained from the Information Agent or the
Dealer Managers.
10. Solicited Tenders
The Limited will pay a solicitation fee of $1.00 per share, up to a maximum
of 1,000 shares, for each share of Limited Common Stock tendered and accepted
for exchange pursuant to the Exchange Offer, covered by the Letter of
Transmittal which designates, in the box captioned "Notice of Solicited
Tenders," as having solicited and obtained the tender, the name of (i) any
broker or dealer in securities which is a member of any national securities
exchange in the United States or of the National Association of Securities
Dealers, Inc. or (ii) any bank or trust company located in the United States
(each, a "Soliciting Dealer"), except that no solicitation fee shall be payable
(i) in connection with a tender of Limited Common Stock by a stockholder (x)
tendering more than 10,000 shares of Limited Common Stock or (y) tendering from
a country outside of the United States or (ii) to the Dealer Managers. In
addition, Soliciting Dealers are not entitled to a fee with respect to shares of
Limited Common Stock beneficially owned by such Soliciting Dealer or with
respect to any shares that are registered in the name of a Soliciting Dealer
unless such shares are held by such Soliciting Dealer as nominee and are
tendered for the benefit of beneficial holders identified in this Letter of
Transmittal. No such fee shall be payable to a Soliciting Dealer if such
Soliciting Dealer is required for any reason to transfer the amount of such fee
to a tendering holder (other than itself). No broker, dealer, bank, trust
company or fiduciary shall be deemed to be the agent of The Limited, the
Exchange Agent, the Information Agent or the Dealer Managers for purposes of the
Exchange Offer.
In order for a Soliciting Dealer to receive a solicitation fee with respect
to the tender of shares of Limited Common Stock, the Exchange Agent must have
received a properly completed and duly executed Letter of Transmittal (including
a completed box entitled "Notice of Solicited Tenders" (Box #9)).
The acceptance of compensation by the Soliciting Dealer listed in "Notice
of Solicited Tenders" (Box #9) will constitute a representation by such
Soliciting Dealer that: (i) it has complied with the applicable requirements of
the Securities Exchange Act of 1934, as amended, and the applicable rules and
regulations thereunder, in connection with such solicitation; (ii) it is
entitled to such compensation for such solicitation under the terms and
conditions of the Offering Circular-Prospectus and this Letter of Transmittal,
and (iii) in soliciting tenders of shares of Limited Common Stock, it has used
no soliciting materials other than those furnished by The Limited.
11. Important Tax Information; Substitute Form W-9
Federal income tax law requires that a holder whose tendered shares of
Limited Common Stock are accepted for exchange must provide the Exchange Agent
(as payor) with his or her correct taxpayer identification number ("TIN") on
Substitute Form W-9 below, which, in the case of a holder who is an individual,
is his or her social security number. If the Exchange Agent is not provided with
the correct TIN or an adequate basis for exemption, the holder may be subject to
a $50 penalty imposed by the Internal Revenue Service (the "IRS") in addition to
backup withholding in an amount equal to 31% of the cash proceeds received in
lieu of fractional shares of A&F Common Stock resulting from the Exchange Offer
if such amount equals or exceeds $20.
Exempt holders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. See the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional instructions.
To prevent backup withholding, each tendering holder must provide his or
her correct TIN by completing the "Substitute Form W-9" set forth herein,
certifying that the TIN provided is correct (or that such holder is awaiting a
TIN) and that (i) the holder is exempt from backup withholding, (ii) the holder
has not been notified by the IRS that he or she is subject to backup withholding
as a result of the failure to report all interest or dividends or (iii) the IRS
has notified the holder that he or she is no longer subject to backup
withholding. In order to satisfy the Exchange Agent that a foreign individual
qualifies as an exempt recipient, such holders must submit a statement signed
under penalty of perjury attesting to such exempt status. Such statements may be
obtained from the Exchange Agent. If the certificate(s) representing shares of
Limited Common Stock are in more than one name or are not in the name of the
actual owner, consult the enclosed guidelines for information on which TIN to
report. If you do not have a TIN, consult the enclosed guidelines for
instructions of applying for a TIN, check the box in Part 2 of the Substitute
Form W-9 (Box #10), and complete the Certification of Awaiting Taxpayer
Identification Number (Box #11) in order to avoid backup withholding.
Notwithstanding that the box in Part 2 of Box #10 is checked and the
Certification of Awaiting Taxpayer Identification Number is completed, the
Exchange Agent will withhold 31% of all reportable payments made prior to the
time a properly certified TIN is provided to the Exchange Agent, and if the TIN
is provided within 60 days, such amount will be refunded.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any such cash payments made in lieu of fractional shares of A&F Common
Stock to the stockholder or other payee if such amount equals or exceeds $20.
Backup withholding is not an additional tax. Rather, the federal income tax
liability of persons subject to backup withholding will be reduced by the amount
of tax withheld. If backup withholding results in an overpayment of taxes, a
refund may be obtained from the IRS.
Holders of shares of Limited Common Stock who acquired their shares at
different times may have different tax bases in their shares of Limited Common
Stock, and should consult with their tax advisors as to the possibility of
identifying the specific shares of Limited Common Stock surrendered in the
Exchange Offer in order to establish the basis of the shares of A&F Common Stock
issued in exchange for shares of Limited Common Stock surrendered.
THE FOLLOWING BOXES MUST BE COMPLETED BY ALL TENDERING STOCKHOLDERS
(See Instruction 11)
PAYOR'S NAME: FIRST CHICAGO TRUST COMPANY OF NEW YORK
Box #10
SUBSTITUTE Part 1--PLEASE PROVIDE YOUR Social security number
TIN IN THE BOX AT RIGHT AND or employer
CERTIFY BY SIGNING AND identification number
DATING BELOW.
Form W-9
Department of the Part 2--Awaiting TIN |_|
Treasury
Internal Revenue Service
Payor's Request for
Taxpayer Identification
Number (TIN)
CERTIFICATION--UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT (1) the number
shown on this form is my correct taxpayer identification number (or I am waiting
for a number to be issued to me) and (2) I am not subject to backup withholding
either because (a) I am exempt from backup withholding, (b) I have not been
notified by the Internal Revenue Service that I am subject to backup withholding
as a result of the failure to report all interest or dividends or (c) the
Internal Revenue Service has notified me that I am no longer subject to backup
withholding.
Signature_____________________________________ Date___________________________
You must cross out item (2) above if you have been notified by the Internal
Revenue Service that you are currently subject to backup withholding because of
under reporting interest or dividends on your tax return. However, if after
being notified by the IRS that you were subject to backup withholding, you
received another notification from the IRS that you are no longer subject to
backup withholding, do not cross out such item (2).
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50 PENALTY
IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP WITHHOLDING OF 31%
OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 2 OF
THE SUBSTITUTE FORM W-9.
Box #11
CERTIFICATION OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalty of perjury that a taxpayer identification number has not
been issued to me, and either that (i) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (ii) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of payment, 31% of all
reportable payments made to me will be withheld, but that such amounts will be
refunded to me if I then provide a taxpayer identification number within sixty
(60) days.
Signature_____________________________________ Date___________________________
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the
Payor--Social Security numbers have nine digits separated by two hyphens: i.e.,
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e., 00-0000000. The table below will help determine the number to
give the payor.
<TABLE>
<CAPTION>
Give the Give the EMPLOYER
SOCIAL SECURITY IDENTIFICATION
For this type of account: number of-- For this type of account: number of--
- ------------------------------- ------------------------------ ----------------------------- -------------------------------
<S> <C> <C> <C>
1. An individual's account The individual 9. A valid trust, estate, or The legal entity (Do not furnish
pension trust the identifying number of the
personal representative or
trustee unless the legal entity
itself is not designated in the
account title.)(5)
2. Two or more individuals The actual owner of the 10. Corporate account The corporation
(joint account) account or, if combined funds,
the first individual on the
account(1)
3. Husband and wife (joint The actual owner of the 11. Religious, charitable, The organization
account) account or, if joint funds, either educational
person(1) organization account
4. Custodian account of a The minor(2) 12. Partnership account The partnership
minor (Uniform Gift to held in the name of the
Minors Act) business
5. Adult and minor (joint The adult or, if the minor is the 13. Association,club, or The organization
account) only contributor, the minor(1) other tax-exempt
organization
6. Account in the name of The ward, minor, or 14. A broker or registered The broker or nominee
guardian or committee for a incompetent person(3) nominee
designated ward, minor, or
incompetent person
7. a. The usual revocable The grantor-trustee(1) 15. Account with the The public entity
savings trust account Department of
(grantor is also trustee) Agriculture in the name
of a public entity (such
as a State or local
government, school
district, or prison) that
receives agricultural
program payments
b. So-called trust account The actual owner(1)
that is not a legal or valid
trust under State law
8. Sole proprietorship account The owner(4)
</TABLE>
- ------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate or pension trust.
Note: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Page 2
Obtaining a Number
If you do not have a taxpayer identification number or you do not know your
number, obtain Form SS-5, Application for a Social Security Number Card (for
individuals), or Form SS-4, Application for Employer Identification Number (for
businesses and all other entities), at the local office of the Social Security
Administration or the Internal Revenue Service.
To complete Substitute Form W-9 if you do not have a taxpayer
identification number, write "Applied For" in the space for the taxpayer
identification number in Part 1, sign and date the Form, and give it to the
requester. Generally, you will then have 60 days to obtain a taxpayer
identification number and furnish it to the requester. If the requester does not
receive your taxpayer identification number within 60 days, backup withholding,
if applicable, will begin and continue until you furnish your taxpayer
identification number to the requester.
Payees Exempt from Backup Withholding
Payees specifically exempted from backup withholding on ALL payments
include the following:
o A corporation.
o A financial institution.
o An organization exempt from tax under section 501(a), or an individual
retirement plan, or a custodial account under section 403(b)(7).
o The United States or any agency or instrumentality
thereof.
o A State, the District of Columbia, a possession of the United States,
or any political subdivision or instrumentality thereof.
o A foreign government or a political subdivision,
agency or instrumentality thereof.
o An international organization or any agency or
instrumentality thereof.
o A registered dealer in securities or commodities registered in the
United States or a possession of the United States.
o An exempt charitable remainder trust, or a non-exempt trust described
in Section 4947(a)(1).
o A real estate investment trust.
o A common trust fund operated by a bank under
section 584(a).
o An entity registered at all times during the tax year under the
Investment Company Act of 1940.
o A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
o Payments to nonresident aliens subject to withholding
under section 1441.
o Payments to partnerships not engaged in a trade or business in the
United States and which have at least one nonresident partner.
o Payments of patronage dividends where the amount
received is not paid in money.
o Payments made by certain foreign organizations.
o Payments made to a nominee.
Payments of interest not generally subject to backup withholding include
the following:
o Payments of interest on obligations issued by individuals. Note: You
may be subject to backup withholding if this interest is $600 or more
and is paid in the course of the payor's trade or business and you
have not provided your correct taxpayer identification number to the
payor.
o Payments of tax-exempt interest (including exempt-interest dividends
under section 852).
o Payments described in section 6049(b)(5) to
nonresident aliens.
o Payments on tax-free covenant bonds under section
1451.
o Payments made by certain foreign organizations.
o Payments made to a nominee.
Exempt payees described above should file a Substitute Form W-9 to avoid
possible erroneous backup withholding. FILE THIS FORM WITH THE PAYOR, FURNISH
YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM,
SIGN AND DATE THE FORM AND RETURN IT TO THE PAYOR.
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
Privacy Act Notice
Section 6109 requires most recipients of dividends, interest, or other
payments to give taxpayer identification numbers to payors who must report the
payments to IRS. IRS uses the numbers for identification purposes. Payors must
be given the numbers whether or not recipients are required to file tax returns.
Payors must generally withhold 31% of taxable interest, dividends, and certain
other payments to a payee who does not furnish a taxpayer identification number
to a payor. Certain penalties may also apply.
Penalties
(1) Penalty For Failure to Furnish Taxpayer Identification Number. If you
fail to furnish your taxpayer identification number to a payor, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) Criminal Penalty For False Information With Respect to Withholding. If
you make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
(3) Civil Penalty for Falsifying Information. Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE
The Information Agent for the Exchange Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, NY 10005
Call Collect: (212) 269-5550
or
Call Toll-Free: (800) 549-6864
The Dealer Managers for the Exchange Offer are:
GOLDMAN, SACHS & CO.
85 Broad Street
New York, NY 10004
Call Toll-Free: (800) 323-5678
EXHIBIT 99.02
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
THE LIMITED, INC.
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This Notice of Guaranteed Delivery or one substantially like it must be
used to accept the Exchange Offer (as defined herein) of The Limited, Inc., a
Circular-Prospectus dated _______, 1998 (the "Offering Circular-Prospectus") and
the related Letter of Transmittal, if (i) your stock certificate(s) representing
shares of common stock, par value $.50 per share (the "Limited Common Stock"),
of The Limited are not immediately available, (ii) you cannot complete the
procedure for book-entry transfer on a timely basis or (iii) you cannot deliver
the certificate(s) and all other required documents to First Chicago Trust
Company of New York (the Exchange Agent) prior to the Expiration Date (as
defined in the Offering Circular-Prospectus). You may deliver this Notice of
Guaranteed Delivery by hand, telegram, facsimile transmission or mail to the
Exchange Agent. See The Exchange Offer Guaranteed Delivery Procedure in the
Offering Circular-Prospectus.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
<TABLE>
<CAPTION>
<S> <C> <C>
If by mail: If by hand: If by overnight delivery:
First Chicago Trust Company First Chicago Trust Company First Chicago Trust Company
of New York of New York of New York
Tenders & Exchanges Tenders & Exchanges Tenders & Exchanges
Suite 4660 c/o The Depository Trust Company Suite 4680
P.O. Box 2569 55 Water Street, DTC TAD 14 Wall Street, 8th Floor
Jersey City, New Jersey Vietnam Veterans Memorial Plaza New York, New York
07303-2569 New York, New York 10041 10005
If by facsimile transmission:
(For Eligible Institutions only)
(201) 222-4720
or
(201) 222-4721
Facsimile confirmation
number:
(201) 222-4707
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO THE EXCHANGE AGENT OTHER
THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE
TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A
VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an Eligible Institution under the Instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box on the Letter of Transmittal.
LADIES AND GENTLEMEN:
Upon the terms and subject to the conditions set forth in the Offering
Circular-Prospectus, and the related Letter of Transmittal (which together
constitute the Exchange Offer), the receipt of which is hereby acknowledged, I
hereby tender to you the number of shares of common stock, par value $.50 per
share (the "Limited Common Stock"), of The Limited, set forth below, at the
Exchange Ratio (as defined in the Offering Circular-Prospectus) indicated in
this Notice of Guaranteed Delivery, pursuant to the guaranteed delivery
procedure set forth in The Exchange Offer Guaranteed Delivery Procedure in the
Offering Circular-Prospectus.
Holders of Limited Common Stock will receive that fraction of a share of
A&F Common Stock represented by the Final Exchange Ratio for each share of
Limited Common Stock accepted for exchange. A holder of shares of Limited Common
Stock wishing to tender portions of his or her holdings of Limited Common Stock
at different Exchange Ratios must complete a separate Letter of Transmittal for
each Exchange Ratio at which he or she wishes to tender such portion of his or
her shares of Limited Common Stock.
CHECK ONLY ONE BOX.
IF MORE THAN ONE BOX IS CHECKED OR IF NO BOX IS CHECKED, THERE IS NO
PROPER TENDER OF SHARES OF LIMITED COMMON STOCK.
- --------------------------------------------------------------------------------
SHARES TENDERED AT EXCHANGE RATIO
DETERMINED BY DUTCH AUCTION
|_| I want to maximize the chance of having The Limited accept for
exchange all the shares of Limited Common Stock I am tendering
(subject to the possibility of proration). Accordingly, by checking
this one box INSTEAD OF ONE OF THE EXCHANGE RATIO BOXES BELOW, I
hereby tender shares of Limited Common Stock at, and am willing to
accept, the Exchange Ratio resulting from the Dutch auction tender
process. This action could result in receiving an Exchange Ratio as
low as ___ of a share of A&F Common Stock per share of Limited Common
Stock.
- ------------------------------------------OR------------------------------------
SHARES TENDERED AT EXCHANGE RATIO
DETERMINED BY STOCKHOLDER
|-| ---------- |-| ---------- |-| ---------- |-| ---------- |-| ----------
|-| ---------- |-| ---------- |-| ---------- |-| ---------- |-| ----------
|-| ---------- |-| ---------- |-| ---------- |-| ---------- |-| ----------
|-| ---------- |-| ---------- |-| ---------- |-| ---------- |-| ----------
|-| ---------- |-| ---------- |-| ---------- |-| ---------- |-| ----------
|-| ---------- |-| ---------- |-| ---------- |-| ---------- |-| ----------
(PLEASE TYPE OR PRINT, EXCEPT FOR SIGNATURE)
<TABLE>
<S> <C>
Name(s) of Registered Holders:__________________________ Number of Shares of Limited Common Stock
Tendered:
- -------------------------------------------------------- ---------------------------------------------------------
Address(es):____________________________________________ Certificate No(s). (if applicable):
- -------------------------------------------------------- ---------------------------------------------------------
- -------------------------------------------------------- ---------------------------------------------------------
_____________________________ (Include Zip Code)
Total Number of Shares Represented by Limited
Common Stock Certificate(s)
---------------------------------------------------------
Area Code and Tel. No(s).: Window Ticket No. (if any):______________________________
- --------------------------------------------------------
Signature(s):____________________________________________
Dated:__________________________________________________
---------------------------------------------------------
IF SHARES OF
LIMITED COMMON
STOCK WILL BE
TENDERED BY
BOOK-ENTRY
TRANSFER, PLEASE
PROVIDE THE
FOLLOWING
INFORMATION:
Account Number:__________________________________________
Transaction Code Number:_________________________________
</TABLE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
The undersigned, a participant in the Security Transfer Agents Medallion
Program or the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program, hereby (i)guarantees that either the
certificates representing the shares of Limited Common Stock tendered hereby in
proper form for transfer or a confirmation of a book-entry transfer of such
shares of Limited Common Stock into the Exchange Agent's account at the
Book-Entry Transfer Facility, in each case together with a properly completed
and duly executed Letter of Transmittal (or a manually signed facsimile thereof)
and any required signature guarantees, or an Agent's Message (as defined in the
Offering Circular-Prospectus) in connection with a book-entry transfer, and any
other documents required by the Letter of Transmittal will be received by the
Exchange Agent at one of its addresses set forth above, within three business
days after the date hereof, (ii) represents that the holder on whose behalf this
tender is being made owns the shares of Limited Common Stock being tendered
within the meaning of Rule 14e-4 promulgated under the Securities Exchange Act
of 1934, as amended (Rule 14e-4), and (iii) represents that the tender of such
shares of Limited Common Stock complies with Rule 14e-4.
<TABLE>
<CAPTION>
(PLEASE TYPE OR PRINT, EXCEPT FOR SIGNATURE)
<S> <C>
- -------------------------------------------------------- ---------------------------------------------------------
Name of Firm Authorized Signature
________________________________________________________ Name:____________________________________________________
Address
- -------------------------------------------------------- ---------------------------------------------------------
(Include Zip Code) Title
________________________________________________________ Date:____________________________________________________
Area Code and Tel. No.
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR SHARES OF LIMITED COMMON STOCK WITH THIS
NOTICE. STOCK CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL
TO THE EXCHANGE AGENT.
EXHIBIT 99.03
[GOLDMAN, SACHS & CO. LETTERHEAD]
OFFER TO EXCHANGE
NOT MORE THAN _____ NOR LESS THAN _____ OF A SHARE OF CLASS A COMMON STOCK OF
ABERCROMBIE & FITCH CO. FOR EACH SHARE OF COMMON STOCK OF THE LIMITED, INC.
THE EXCHANGE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON ___, 1998, UNLESS THE EXCHANGE OFFER IS
EXTENDED.
_________, 1998
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
We refer to the enclosed Offering Circular-Prospectus dated _______, 1998
(the "Offering Circular-Prospectus"), of The Limited, Inc. ("The Limited"), and
the related Letter of Transmittal (the "Letter of Transmittal"), which together
constitute The Limited's offer (the "Exchange Offer") to exchange up to
43,600,000 shares of Class A common stock, par value $.01 per share ("A&F Common
Stock"), of Abercrombie & Fitch Co. ("A&F"), for shares of common stock, par
value $.50 per share (the "Limited Common Stock"), of The Limited that are
validly tendered by the Expiration Date and not withdrawn or deemed withdrawn,
at an Exchange Ratio not greater than ___ nor less than ____ of a share of A&F
Common Stock for each share of Limited Common Stock tendered, upon the terms and
subject to the conditions set forth in the Offering Circular-Prospectus and in
the related Letter of Transmittal. See "Summary", "The Transactions" and "The
Exchange Offer" in the Offering Circular-Prospectus. Capitalized terms used
herein have the same meanings as in the Offering Circular-Prospectus.
We have been appointed by The Limited to act as the Dealer Managers in
connection with the Exchange Offer. Your attention is directed to the Offering
Circular-Prospectus, which should be read by you in its entirety.
The Exchange Offer, proration period and withdrawal rights will expire at
12:00 Midnight, New York City time, on __________, 1998 (the "Expiration Date"),
unless extended in accordance with applicable law and the terms of the Exchange
Offer, in which event the term "Expiration Date" shall mean the latest time and
date to which the Exchange Offer, as extended, shall expire. The maximum number
of shares of Limited Common Stock which will be accepted for exchange will be
that number of shares which, when multiplied by the Final Exchange Ratio, equals
43,600,000 shares of A&F Common Stock. If more than such maximum number of
shares of Limited Common Stock are tendered at Exchange Ratios at or below the
Final Exchange Ratio, the Exchange Offer will be oversubscribed, and shares of
Limited Common Stock tendered at or below the Final Exchange Ratio will be
subject to proration in accordance with the terms set forth in the Offering
Circular-Prospectus under "The Exchange Offer-Terms of the Exchange Offer".
The Limited will pay to a Soliciting Dealer (as defined below) a
solicitation fee of $1.00 per share, up to a maximum of 1,000 shares, for each
share of Limited Common Stock tendered and accepted for exchange pursuant to the
Exchange Offer if such Soliciting Dealer has affirmatively solicited and
obtained such tender, except that no solicitation fee shall be payable (i) in
connection with a tender of Limited Common Stock by a stockholder (A) tendering
more than 10,000 shares of Limited Common Stock or (B) tendering from a country
outside of the United States; or (ii) to the Dealer Managers. "Soliciting
Dealer" includes (i) any broker or dealer in securities which is a member of any
national securities exchange in the United States or of the National Association
of Securities Dealers, Inc. or (ii) any bank or trust company located in the
United States. In order for a Soliciting Dealer to receive a solicitation fee
with respect to the tender of shares of Limited Common Stock, the Exchange Agent
must have received a properly completed and duly executed Letter of Transmittal
(including a completed box entitled "Notice of Solicited Tenders" (Box #9)).
No solicitation fee shall be payable to a Soliciting Dealer if such
Soliciting Dealer is required for any reason to transfer the amount of such fee
to a tendering holder (other than itself). Soliciting Dealers are not entitled
to a solicitation fee with respect to shares of Limited Common Stock
beneficially owned by such Soliciting Dealer or with respect to any shares that
are registered in the name of a Soliciting Dealer unless the shares are held by
such Soliciting Dealer as nominee and are tendered for the benefit of beneficial
holders identified in the Letter of Transmittal. No broker, dealer, bank, trust
company or fiduciary shall be deemed to be the agent of The Limited, A&F, the
Exchange Agent, the Dealer Managers or the Information Agent for purposes of the
Exchange Offer.
The acceptance of compensation by a Soliciting Dealer will constitute a
representation by such Soliciting Dealer that: (i) it has complied with the
applicable requirements of the Securities Exchange Act of 1934, as amended, and
the applicable rules and regulations thereunder, in connection with such
solicitation; (ii) it is entitled to such compensation for such solicitation
under the terms and conditions of the Offering Circular-Prospectus and the
related Letter of Transmittal and (iii) in soliciting tenders of shares of
Limited Common Stock, it has used no soliciting materials other than those
furnished by The Limited.
For your information and for forwarding to your clients for whom you hold
shares of Limited Common Stock registered in your name or in the name of your
nominee or who hold shares of Limited Common Stock registered in their own
names, we are enclosing the following documents:
1. The Offering Circular-Prospectus;
2. The Letter of Transmittal, including the Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9, for your use and for the
information of your clients;
3. A letter that may be sent to your clients for whose account you hold
shares of Limited Common Stock registered in your name or the name of your
nominee, with space provided for obtaining such clients' instructions with
regard to the Exchange Offer;
4. A Notice of Guaranteed Delivery to be used to accept the Exchange Offer
if the certificates for shares of Limited Common Stock are not immediately
available, the procedure for book-entry transfer cannot be completed on a timely
basis or time will not permit all required documents to reach First Chicago
Trust Company of New York, the Exchange Agent, prior to the Expiration Date; and
5. A return envelope addressed to the Exchange Agent.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. THE EXCHANGE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS
WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON ___________, 1998, UNLESS
EXTENDED BY THE LIMITED AS PROVIDED IN THE OFFERING CIRCULAR-PROSPECTUS. Except
as otherwise provided in the Offering Circular-Prospectus and the related Letter
of Transmittal, tenders are irrevocable.
The Limited will not pay any fees or commissions to any broker or dealer or
any other person (other than the Dealer Managers, the Soliciting Dealers, the
Information Agent and the Exchange Agent as described in "The Exchange
Offer--Fees and Expenses" in the Offering Circular-Prospectus) for soliciting
tenders of shares of Limited Common Stock pursuant to the Exchange Offer. The
Limited will, however, upon request, reimburse you for reasonable and necessary
costs and expenses incurred by you in forwarding any of the enclosed materials
to your customers. The Limited will pay all stock transfer taxes, if any,
payable on the transfer to it of shares of Limited Common Stock and the transfer
to tendering stockholders of shares of A&F Common Stock pursuant to the Exchange
Offer, except as otherwise provided in Instruction 7 of the Letter of
Transmittal.
To participate in the Exchange Offer, certificate(s) for shares of Limited
Common Stock or a confirmation of any book-entry transfer into the Exchange
Agent's account at the Book-Entry Transfer Facility of shares of Limited Common
Stock tendered electronically, as well as a properly completed and duly executed
Letter of Transmittal (or manually signed facsimile thereof) and any required
signature guarantees, or an Agent's Message in connection with a book-entry
transfer of shares, and any other documents required by the Letter of
Transmittal must be received by the Exchange Agent as indicated in the Letter of
Transmittal and the Offering Circular-Prospectus prior to the Expiration Date.
Holders whose stock certificate(s) representing shares of Limited Common
Stock are not immediately available or who cannot complete the procedure for
delivery by book-entry transfer on a timely basis or who cannot deliver their
certificate(s) and all other required documents to the Exchange Agent prior to
the Expiration Date may tender their shares of Limited Common Stock pursuant to
the guaranteed delivery procedure set forth in the Offering Circular- Prospectus
under "The Exchange Offer--Guaranteed Delivery Procedure".
Any inquiries you may have with respect to the Exchange Offer should be
addressed to the Dealer Managers or the Information Agent at their respective
addresses and telephone numbers set forth on the back cover of the Offering
Circular-Prospectus. Additional copies of the enclosed material may also be
obtained from the undersigned, telephone (800) 323-5678 (call toll-free), or the
Information Agent, D.F. King & Co., Inc., telephone (212) 269-5550 (collect) or
(800) 549-6864 (toll-free).
Very truly yours,
GOLDMAN, SACHS & CO.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON AS AN AGENT OF THE LIMITED, A&F, THE EXCHANGE AGENT, THE
INFORMATION AGENT, THE DEALER MANAGERS, THE SOLICITING DEALERS, OR ANY AFFILIATE
OF ANY OF THE FOREGOING, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY
DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE
EXCHANGE OFFER, OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED
THEREIN.
EXHIBIT 99.04
OFFER TO EXCHANGE
NOT MORE THAN _____ NOR LESS THAN _____ OF A SHARE OF CLASS A COMMON STOCK OF
ABERCROMBIE & FITCH CO. FOR EACH SHARE OF COMMON STOCK OF THE LIMITED,
INC.
THE EXCHANGE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON ___, 1998, UNLESS THE EXCHANGE OFFER IS
EXTENDED.
_________, 1998
To Our Clients:
Enclosed for your consideration is the Offering Circular-Prospectus dated
_______, 1998 (the "Offering Circular- Prospectus"), of The Limited, Inc. ("The
Limited"), and the related Letter of Transmittal (the "Letter of Transmittal"),
which together constitute The Limited's offer (the "Exchange Offer") to exchange
up to 43,600,000 shares of Class A common stock, par value $.01 per share ("A&F
Common Stock"), of Abercrombie & Fitch Co. ("A&F"), for shares of common stock,
par value $.50 per share (the "Limited Common Stock"), of The Limited that are
validly tendered by the Expiration Date and not withdrawn or deemed withdrawn,
at an Exchange Ratio not greater than ___ nor less than ____ of a share of A&F
Common Stock for each share of Limited Common Stock tendered, upon the terms and
subject to the conditions set forth in the Offering Circular-Prospectus and in
the related Letter of Transmittal. See "Summary", "The Transactions" and "The
Exchange Offer" in the Offering Circular-Prospectus. Capitalized terms used
herein have the same meanings as in the Offering Circular-Prospectus.
The Exchange Offer, proration period and withdrawal rights will expire at
12:00 Midnight, New York City time, on __________, 1998 (the "Expiration Date"),
unless extended in accordance with applicable law and the terms of the Exchange
Offer, in which event the term "Expiration Date" shall mean the latest time and
date to which the Exchange Offer, as extended, shall expire.
THIS MATERIAL IS BEING FORWARDED TO YOU AS THE BENEFICIAL OWNER OF SHARES
OF LIMITED COMMON STOCK HELD BY US FOR YOUR ACCOUNT BUT NOT REGISTERED IN YOUR
NAME. A TENDER OF SUCH SHARES OF LIMITED COMMON STOCK MAY ONLY BE MADE BY US AS
THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF
TRANSMITTAL IS FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY
YOU TO TENDER SHARES OF LIMITED COMMON STOCK HELD BY US FOR YOUR ACCOUNT.
Accordingly, we request instructions as to whether you wish us to tender
any or all such shares of Limited Common Stock held by us for your account,
pursuant to the terms and conditions set forth in the Exchange Offer.
Your attention is invited to the following:
1. The Exchange Ratio Range within which you may tender for exchange is not
more than ____ nor less than ______ of a share of A&F Common Stock for each
share of Limited Common Stock tendered and exchanged.
2. The Limited currently holds up to 43,600,000 of the shares of A&F Common
Stock, at least 90% of which will be distributed pursuant to the Exchange Offer,
subject to the terms and conditions thereof.
3. The Exchange Offer is subject to the satisfaction of certain conditions,
as described in the Offering Circular- Prospectus, and is also subject to
proration in certain circumstances, as described below.
4. The Exchange Offer, proration period and withdrawal rights will expire
at 12:00 Midnight, New York City time, on __________, 1998, unless extended.
5. You have the right to tender all, or a portion, of your shares of
Limited Common Stock. You may choose the Exchange Ratio at which you tender such
shares by either (a) checking the box marked "SHARES TENDERED AT EXCHANGE RATIO
DETERMINED BY DUTCH AUCTION" or (b) checking one of the boxes in the section
marked "SHARES TENDERED AT EXCHANGE RATIO DETERMINED BY STOCKHOLDER". If you
wish to maximize the chance of having The Limited accept for exchange all of the
shares of Limited Common Stock you are tendering (subject to the possibility of
proration), you should check the box marked "SHARES TENDERED AT EXCHANGE RATIO
DETERMINED BY DUTCH AUCTION" below.
6. You will receive that fraction of a share of A&F Common Stock
represented by the Final Exchange Ratio for each share of Limited Common Stock
accepted for exchange.
7. Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as otherwise provided in Instruction 7 of the Letter of
Transmittal, stock transfer taxes with respect to the exchange of shares in the
Exchange Offer.
8. Please instruct us clearly if you wish to tender some shares of Limited
Common Stock at one Exchange Ratio and other shares of Limited Common Stock at
another Exchange Ratio. We must submit separate Letters of Transmittal on your
behalf for each Exchange Ratio, although the same shares of Limited Common Stock
cannot be tendered for exchange at more than one Exchange Ratio.
The maximum number of shares of Limited Common Stock which will be accepted
for exchange will be that number of shares which, when multiplied by the Final
Exchange Ratio, equals 43,600,000 shares of A&F Common Stock. If more than such
maximum number of shares of Limited Common Stock are tendered at Exchange Ratios
at or below the Final Exchange Ratio, the Exchange Offer will be oversubscribed,
and shares of Limited Common Stock tendered at or below the Final Exchange Ratio
will be subject to proration in accordance with the terms set forth in the
Offering Circular-Prospectus under "The Exchange Offer--Terms of the Exchange
Offer". If proration of tendered shares of Limited Common Stock is required, the
undersigned understands that The Limited does not expect that it would be able
to announce the final proration factor or to commence delivery of any shares of
A&F Common Stock pursuant to the Exchange Offer until approximately seven
business days after the Expiration Date. Upon acceptance by The Limited of the
shares of Limited Common Stock tendered herewith, stockholders will be deemed to
have accepted the shares of A&F Common Stock exchanged therefor and will be
deemed to have relinquished all rights with respect to the shares of Limited
Common Stock so accepted.
The Exchange Offer is made solely by the Offering Circular-Prospectus and
the related Letter of Transmittal and is being made to all Limited stockholders.
The Limited is not aware of any jurisdiction where the making of the Exchange
Offer or the acceptance thereof would not be in compliance with applicable law.
If The Limited becomes aware of any jurisdiction where the making of the
Exchange Offer or acceptance thereof would not be in compliance with any valid
applicable law, The Limited will make a good faith effort to comply with such
law. If, after such good faith effort, The Limited cannot comply with such law,
the Exchange Offer will not be made to, nor will tenders be accepted from or on
behalf of, Limited stockholders in any such jurisdiction.
If you wish to have us tender any or all of your shares of Limited Common
Stock, please so instruct us by completing, executing and returning to us the
attached instruction form. An envelope to return your instructions is enclosed.
Please forward your instructions to us in ample time to permit us to submit a
tender on your behalf prior to the Expiration Date. IF YOU AUTHORIZE THE TENDER
OF YOUR SHARES OF LIMITED COMMON STOCK, ALL SUCH SHARES WILL BE TENDERED UNLESS
OTHERWISE SPECIFIED ON THE ATTACHED INSTRUCTION FORM.
INSTRUCTIONS WITH RESPECT TO THE OFFER TO EXCHANGE NOT MORE THAN ____ NOR
LESS THAN _____ OF A SHARE OF A&F COMMON STOCK FOR EACH SHARE OF LIMITED COMMON
STOCK.
I acknowledge receipt of your letter and the enclosed Offering
Circular-Prospectus dated __________, 1998 (the "Offering Circular-Prospectus"),
of The Limited, Inc. and the related Letter of Transmittal (the "Letter of
Transmittal"), which together constitute The Limited's offer (the "Exchange
Offer") to exchange up to 43,600,000 shares of Class A common stock, par value
$.01 per share (the "A&F Common Stock"), of Abercrombie & Fitch Co. ("A&F"), for
shares of common stock, par value $.50 per share (the "Limited Common Stock"),
of The Limited that are validly tendered by the Expiration Date and not
withdrawn or deemed withdrawn, at an Exchange Ratio not greater than ____ nor
less than ______ of a share of A&F Common Stock for each share of Limited Common
Stock tendered, upon the terms and subject to the conditions set forth in the
Offering Circular-Prospectus and the related Letter of Transmittal. See
"Summary", "The Transactions" and "The Exchange Offer" in the Offering
Circular-Prospectus. Capitalized terms used herein shall have the same meanings
as in the Offering Circular-Prospectus.
This will instruct you to tender the number of shares of Limited Common
Stock indicated below (or, if no number is indicated below, all shares) at the
Exchange Ratio indicated in the following box held by you for my account, upon
the terms and subject to the conditions set forth in the Offering
Circular-Prospectus and the related Letter of Transmittal.
CHECK ONLY ONE BOX.
IF MORE THAN ONE BOX IS CHECKED OR IF NO BOX IS CHECKED, THERE IS NO
PROPER TENDER OF SHARES OF LIMITED COMMON STOCK.
- --------------------------------------------------------------------------------
SHARES TENDERED AT EXCHANGE RATIO
DETERMINED BY DUTCH AUCTION
|_| I want to maximize the chance of having The Limited accept for
exchange all the shares of Limited Common Stock I am tendering
(subject to the possibility of proration). Accordingly, by checking
this one box INSTEAD OF ONE OF THE EXCHANGE RATIO BOXES BELOW, I
hereby tender shares of Limited Common Stock at, and am willing to
accept, the Exchange Ratio resulting from the Dutch auction tender
process. This action could result in receiving an Exchange Ratio as
low as ___ of a share of A&F Common Stock per share of Limited Common
Stock.
- ----------------------------------------OR--------------------------------------
SHARES TENDERED AT EXCHANGE RATIO
DETERMINED BY STOCKHOLDER
|-|---------- |-|---------- |-|---------- |-|---------- |-|----------
|-|---------- |-|---------- |-|---------- |-|---------- |-|----------
|-|---------- |-|---------- |-|---------- |-|---------- |-|----------
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|-|---------- |-|---------- |-|---------- |-|---------- |-|----------
NOTICE OF SOLICITED TENDERS
The Limited will pay to a Soliciting Dealer (as defined in the Offering
Circular--Prospectus) a solicitation fee of $1.00 per share, up to a maximum of
1,000 shares, for each share of Limited Common Stock tendered and accepted for
exchange pursuant to the Exchange Offer if such Soliciting Dealer has
affirmatively solicited and obtained such tender, except that no solicitation
fee shall be payable (i) in connection with a tender of Limited Common Stock by
a stockholder (A) tendering more than 10,000 shares of Limited Common Stock or
(B) tendering from a country outside of the United States; or (ii) to the Dealer
Managers. In addition, no such fee shall be payable to a Soliciting Dealer if
such Soliciting Dealer is required for any reason to transfer the amount of such
fee to a tendering holder (other than itself). No broker, dealer, bank, trust
company or fiduciary shall be deemed to be the agent of The Limited, A&F, the
Exchange Agent, the Dealer Managers or the Information Agent for purposes of the
Exchange Offer.
|_| By checking this box, I represent that my tender was affirmatively solicited
by the Soliciting Dealer listed below:
Name of Firm:___________________________________________________________________
(Please Print)
Name of Individual Broker or Financial Consultant:______________________________
Identification Number (if known):_______________________________________________
Address:________________________________________________________________________
(Include Zip Code)
NUMBER OF SHARES OF LIMITED COMMON
STOCK TO BE TENDERED:* SIGN HERE:
_____________________________SHARES __________________________________________
------------------------------------------
Account Numbers: SIGNATURE(S)
Dated:_______________________, 1998 PLEASE TYPE OR PRINT NAME(S) HERE:
------------------------------------------
PLEASE TYPE OR PRINT ADDRESS(ES)
HERE:
------------------------------------------
------------------------------------------
------------------------------------------
AREA CODE AND TELEPHONE NUMBER
------------------------------------------
TAXPAYER IDENTIFICATION OR SOCIAL SECURITY
NUMBER(S)
- --------
* Unless otherwise indicated, it will be assumed that all shares of Limited
Common Stock held by us for your account are to be tendered.
EXHIBIT 99.05
[The Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W- 9 are included in the Letter of Transmittal filed as
Exhibit 99.01 hereto).]
EXHIBIT 99.06
FORM OF
LETTER FROM SAVINGS AND RETIREMENT PLAN
ADMINISTRATIVE COMMITTEE
__________, 1998
OFFER TO EXCHANGE
NOT MORE THAN ______ NOR LESS THAN ______ OF A SHARE
OF CLASS A COMMON STOCK OF ABERCROMBIE & FITCH CO. FOR
EACH SHARE OF COMMON STOCK OF THE LIMITED, INC.
NAME/ADDRESS
Dear ___________:
We are enclosing the Offering Circular-Prospectus dated _______, 1998 (the
"Offering Circular-Prospectus") of The Limited, Inc. ("The Limited"), and the
related Letter of Transmittal (the "Letter of Transmittal"), which together
constitute The Limited's offer to its stockholders (the "Exchange Offer") to
exchange up to 43,600,000 shares of Class A common stock, par value $.01 per
share ("A&F Common Stock"), of Abercrombie & Fitch Co. ("A&F"), for shares of
common stock, par value $.50 per share (the "Limited Common Stock"), of The
Limited that are validly tendered by the Expiration Date (as defined below) and
not withdrawn or deemed withdrawn, at an Exchange Ratio not greater than ___ nor
less than ____ of a share of A&F Common Stock for each share of Limited Common
Stock tendered, upon the terms and subject to the conditions set forth in the
Offering Circular-Prospectus and in the related Letter of Transmittal. See
"Summary", "The Transactions" and "The Exchange Offer" in the Offering
Circular-Prospectus. Capitalized terms used herein shall have the meanings
ascribed to them in the Offering Circular-Prospectus. Also enclosed is a brief
description of the Exchange Offer in connection with The Limited's Savings and
Retirement Plan ("Savings and Retirement Plan"), questions and answers
describing how the process works and a Tender Instruction Form for the tender of
Limited Common Stock held in the Savings and Retirement Plan.
Our records indicate that you hold ____ whole shares of Limited Common
Stock ("Plan Shares") allocated to your account under the Savings and Retirement
Plan ("Account") as of _____________, 1998. As a participant in the Savings and
Retirement Plan you may elect to "tender" (exchange) some or all of the shares
of Limited Common Stock (excluding fractional shares) currently allocated to
your Account by following the procedures described in the attachments to this
letter. PLEASE NOTE THAT, ALTHOUGH THE DEADLINE FOR THE TRUSTEE OF THE SAVINGS
AND RETIREMENT PLAN ("TRUSTEE") TO TENDER YOUR SHARES IS ____________, 1998, YOU
MUST SEND YOUR TENDER INSTRUCTION FORM TO THE ADMINISTRATIVE COMMITTEE FOR
RECEIPT BY _____________, 1998. You also may withdraw any tender you have made
under the Exchange Offer provided you do so prior to the , 1998 deadline.
THIS MATERIAL IS BEING FORWARDED TO YOU AS THE BENEFICIAL OWNER OF SHARES
OF LIMITED COMMON STOCK HELD ON YOUR BEHALF UNDER THE SAVINGS AND RETIREMENT
PLAN BUT NOT REGISTERED IN YOUR NAME. A TENDER OF SUCH SHARES OF LIMITED COMMON
STOCK MAY ONLY BE MADE BY THE TRUSTEE OF THE SAVINGS AND RETIREMENT PLAN AS THE
HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS
FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER
SHARES OF LIMITED COMMON STOCK HELD IN YOUR ACCOUNT UNDER THE SAVINGS AND
RETIREMENT PLAN.
Accordingly, we request instructions as to whether you wish the Trustee to
tender any or all such shares of Limited Common Stock held in your Account under
the Savings and Retirement Plan, pursuant to the terms and conditions set forth
in the Exchange Offer.
Your attention is invited to the following:
1. The Exchange Ratio Range within which you may direct the Trustee to
tender for exchange is not more than ____ nor less than ______ of a share of A&F
Common Stock for each share of Limited Common Stock tendered and exchanged.
2. The Limited currently holds up to 43,600,000 of the shares of A&F Common
Stock, at least 90% of which will be distributed pursuant to the Exchange Offer,
subject to the terms and conditions thereof.
3. The Exchange Offer is subject to the satisfaction of certain conditions,
as described in the Offering Circular-Prospectus, and is also subject to
proration in certain circumstances, as described below.
4. A holder of Limited Common Stock has the right to tender all, or a
portion, of such holder's shares of Limited Common Stock (excluding fractional
shares). You may choose the Exchange Ratio at which you tender such shares by
either (a) checking the box marked "SHARES TENDERED AT EXCHANGE RATIO DETERMINED
BY DUTCH AUCTION" or (b) checking one of the boxes in the section marked "SHARES
TENDERED AT EXCHANGE RATIO DETERMINED BY STOCKHOLDER". If you wish to maximize
the chance of having The Limited accept for exchange all of the shares of
Limited Common Stock you are tendering (subject to the possibility of
proration), you should check the box marked "SHARES TENDERED AT EXCHANGE RATIO
DETERMINED BY DUTCH AUCTION" below.
5. Holders of Limited Common Stock will receive that fraction of a share of
A&F Common Stock represented by the Final Exchange Ratio for each share of
Limited Common Stock accepted for exchange.
6. Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as otherwise provided in Instruction 7 of the Letter of
Transmittal, stock transfer taxes with respect to the exchange of shares in the
Exchange Offer.
7. You must submit separate Tender Instruction Forms if you wish to tender
some shares of Limited Common Stock in your Account at one Exchange Ratio and
other shares of Limited Common Stock in your Account at another Exchange Ratio.
Please note that the same shares of Limited Common Stock cannot be tendered for
exchange at more than one Exchange Ratio.
The Exchange Offer, proration period and withdrawal rights will expire at
12:00 Midnight, New York City time, on __________, 1998 (the "Expiration Date"),
unless extended in accordance with applicable law and the terms of the Exchange
Offer, in which event the term "Expiration Date" shall mean the latest time and
date to which the Exchange Offer, as extended, shall expire.
The maximum number of shares of Limited Common Stock which will be accepted
for exchange will be that number of shares which, when multiplied by the Final
Exchange Ratio, equals 43,600,000 shares of A&F Common Stock. If more than such
maximum number of shares of Limited Common Stock are tendered at Exchange Ratios
at or below the Final Exchange Ratio, the Exchange Offer will be oversubscribed,
and shares of Limited Common Stock tendered at or below the Final Exchange Ratio
will be subject to proration in accordance with the terms set forth in the
Offering Circular-Prospectus under "The Exchange Offer--Terms of the Exchange
Offer". If proration of tendered shares of Limited Common Stock is required, The
Limited does not expect that it would be able to announce the final proration
factor or to commence delivery of any shares of A&F Common Stock pursuant to the
Exchange Offer until approximately seven business days after the Expiration
Date. Upon acceptance by The Limited of the shares of Limited Common Stock
tendered pursuant hereto, you will be deemed to have accepted the shares of A&F
Common Stock exchanged therefor and will be deemed to have relinquished all
rights with respect to the shares of Limited Common Stock so accepted.
The Exchange Offer is made solely by the Offering Circular-Prospectus and
the related Letter of Transmittal and is being made to all holders of Limited
Common Stock. The Limited is not aware of any jurisdiction where the making of
the Exchange Offer or the acceptance thereof would not be in compliance with
applicable law. If The Limited becomes aware of any jurisdiction where the
making of the Exchange Offer or acceptance thereof would not be in compliance
with any valid applicable law, The Limited will make a good faith effort to
comply with such law. If, after such good faith effort, The Limited cannot
comply with such law, the Exchange Offer will not be made to, nor will tenders
be accepted from or on behalf of, holders of shares of Limited Common Stock in
any such jurisdiction.
IF YOU WISH TO AUTHORIZE THE TENDER OF SHARES OF LIMITED COMMON STOCK HELD
IN YOUR ACCOUNT IN THE SAVINGS AND RETIREMENT PLAN. PLEASE COMPLETE THE TENDER
INSTRUCTION FORM, INDICATING THE NUMBER OF SHARES TENDERED AND THE EXCHANGE
RATIO, AND RETURN THE SIGNED FORM TO US IN THE ENVELOPE PROVIDED. IF YOU
INDICATE AN EXCHANGE RATIO AND DO NOT SPECIFY A SPECIFIC NUMBER OF SHARES, ALL
SHARES IN YOUR ACCOUNT WILL BE TENDERED. IF YOU FAIL TO SIGN THE TENDER
INSTRUCTION FORM OR FAIL TO INDICATE AN EXCHANGE RATIO, YOUR INSTRUCTION WILL BE
INVALID AND NO SHARES IN YOUR ACCOUNT WILL BE TENDERED. PLEASE FORWARD YOUR
INSTRUCTIONS TO THE ADMINISTRATIVE COMMITTEE BY ___________, 1998 TO PERMIT US
TO SUBMIT A TENDER ON YOUR BEHALF PRIOR TO THE EXPIRATION DATE.
Before making a decision, you should read carefully the materials in the
enclosed Offering Circular- Prospectus, the Notice to Savings and Retirement
Plan Participants and the Tender Instruction Form. If you take no action, no
shares in your Account will be tendered by the Trustee. The Administrative
Committee and the Trustee will treat confidentially your decision whether or not
to tender these shares.
NONE OF THE LIMITED, A&F, THE TRUSTEE, THE ADMINISTRATIVE COMMITTEE, THE
BOARD OF DIRECTORS OF THE LIMITED OR THE BOARD OF DIRECTORS OF A&F MAKES ANY
RECOMMENDATION TO ANY STOCKHOLDER OF THE LIMITED AS TO WHETHER TO TENDER OR
REFRAIN FROM TENDERING SHARES OF LIMITED COMMON STOCK PURSUANT TO THE EXCHANGE
OFFER. EACH STOCKHOLDER OF THE LIMITED MUST MAKE HIS OR HER OWN DECISION WHETHER
TO TENDER SHARES OF LIMITED COMMON STOCK PURSUANT TO THE EXCHANGE OFFER AND, IF
SO, HOW MANY SHARES TO TENDER AND AT WHAT EXCHANGE RATIO TO TENDER SUCH SHARES
AFTER READING THE OFFERING CIRCULAR-PROSPECTUS AND CONSULTING WITH HIS OR HER
ADVISORS BASED ON HIS OR HER OWN FINANCIAL POSITION AND REQUIREMENTS.
If you direct the Trustee to tender shares of Limited Common Stock and such
shares are exchanged for shares of A&F Common Stock, the A&F Common Stock will
be held in a separate investment fund under the Savings and Retirement Plan.
PLEASE NOTE THAT TO THE EXTENT SUCH SHARES OF A&F COMMON STOCK ARE NOT RETAINED
BY YOU AS AN INVESTMENT UNDER THE SAVINGS AND RETIREMENT PLAN, YOU MAY NOT
QUALIFY FOR CERTAIN FAVORABLE TAX TREATMENT UPON SUBSEQUENT DISTRIBUTIONS TO YOU
FROM THE SAVINGS AND RETIREMENT PLAN. SEE "CERTAIN TAX INFORMATION" FOLLOWING
THE ATTACHED QUESTIONS AND ANSWERS ("Q&As") ON THE SAVINGS AND RETIREMENT PLAN.
For any Savings and Retirement Plan participant, during the period the
Exchange Offer is open (and thereafter for so long as legal restrictions apply),
the Trustee will not purchase any shares of Limited Common Stock for the Savings
and Retirement Plan. Instead, the Trustee will accumulate any of your
contributions and employer matching contributions that you have directed into
the Account. The Trustee will invest these amounts in a short-term fund and will
resume purchases of shares of Limited Common Stock once the Exchange Offer
period is concluded.
ANY DISTRIBUTIONS OR INVESTMENT FUND TRANSFERS THAT MAY BE REQUESTED DURING
THE EXCHANGE OFFER PERIOD MAY BE DELAYED UNTIL AFTER THE EXPIRATION OF THE
EXCHANGE OFFER.
IF YOU ELECT TO INSTRUCT THE TRUSTEE TO TENDER SHARES FROM YOUR ACCOUNT,
THE ENCLOSED [COLOR] TENDER INSTRUCTION FORM MUST BE RECEIVED BY THE
ADMINISTRATIVE COMMITTEE BY ______________, 1998. PLEASE USE THE ENCLOSED REPLY
ENVELOPE TO RETURN YOUR TENDER INSTRUCTION FORM.
TENDER INSTRUCTION FORMS RECEIVED AFTER THE ABOVE DATE WILL NOT BE
ACCEPTED.
YOU MUST COMPLETE AND SIGN YOUR TENDER INSTRUCTION FORM. IF YOU DO NOT SIGN
THE FORM, YOUR DIRECTIONS WILL NOT BE ACCEPTED AND THE INSTRUCTION FORM, AS WELL
AS YOUR DIRECTIONS, WILL BE VOID.
IF YOU DO NOT WISH TO TENDER YOUR SHARES, TAKE NO ACTION.
ADMINISTRATIVE COMMITTEE
The Limited, Inc. Savings and Retirement Plan
The Offer is not being made to, nor will tenders be accepted from or on
behalf of, holders of Shares in any jurisdiction in which the making of the
Offer or acceptance thereof would not be in compliance with the laws of such
jurisdiction. In those jurisdictions the laws of which require that the Offer be
made by a licensed broker or dealer, the Offer shall be deemed to be made on
behalf of the Company by Goldman, Sachs & Co. or one or more registered brokers
or dealers licensed under the laws of such jurisdiction.
TENDER INSTRUCTION FORM
FOR SHARES IN THE LIMITED, INC.
SAVINGS AND RETIREMENT PLAN
(NOTE: Before completing this Tender Instruction Form, you should refer to the
attached Letter (the "SARP Committee Letter") from the Administrative Committee
of The Limited, Inc. Savings and Retirement Plan ("Savings and Retirement Plan")
and the attached Notice to Savings and Retirement Plan Participants ("Notice").
Capitalized terms used herein shall have the meanings ascribed to them in the
SARP Committee Letter or the Offering Circular-Prospectus, as the case may be.)
TO THE TRUSTEE OF THE SAVINGS AND RETIREMENT PLAN:
I am a participant in the above-referenced Savings and Retirement Plan who
has shares of Limited Common Stock credited to my Account and, as such,
acknowledge receipt of your letter and the enclosed Offering Circular-Prospectus
and the related Letter of Transmittal, which together constitute The Limited's
offer to its stockholders to exchange up to 43,600,000 shares of A&F Common
Stock for shares of Limited Common Stock that are validly tendered by the
Expiration Date and not withdrawn or deemed withdrawn, at an Exchange Ratio not
greater than ___ nor less than ____ of a share of A&F Common Stock for each
share of Limited Common Stock tendered and exchanged, upon the terms and subject
to the conditions set forth in the Offering Circular-Prospectus and in the
related Letter of Transmittal.
This form instructs you to tender the number of shares of Limited Common
Stock indicated below (or, if no number is indicated below, all shares) at the
Exchange Ratio indicated in the following box held by you for the account of the
undersigned, upon the terms and subject to the conditions set forth in the
Offering Circular-Prospectus and the related Letter of Transmittal. I
acknowledge that if I instruct you to tender more shares of Limited Common Stock
than are held in my account, my instruction will be invalid and you will not
tender any shares of Limited Common Stock held in my Account.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
BEFORE COMPLETING THIS TENDER INSTRUCTION FORM.
THE UNDERSIGNED, BY COMPLETING THE BOXES BELOW AND SIGNING THIS TENDER
INSTRUCTION FORM, WILL BE DEEMED TO HAVE INSTRUCTED THE TRUSTEE TO TENDER THE
INDICATED NUMBER OF SHARES OF LIMITED COMMON STOCK HELD IN THE UNDERSIGNED'S
ACCOUNT IN THE SAVINGS AND RETIREMENT PLAN
<TABLE>
<CAPTION>
SAVINGS AND RETIREMENT PLAN ACCOUNT
<S> <C> <C>
Number of Whole
Shares held in Number of
Participant's Shares
Name of Savings and Retirement Plan Participant Account Tendered (*)
- ---------------------------------------------------------------------------------------------------------------------
* Unless otherwise indicated in this column, the participant will be deemed to
have tendered all of the shares of Limited Common Stock held in the
participant's Savings and Retirement Plan Account.
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
CHECK ONLY ONE BOX BELOW TO INDICATE EXCHANGE RATIO SELECTED.
IF MORE THAN ONE BOX IS CHECKED OR IF NO BOX IS CHECKED,
THERE IS NO PROPER TENDER OF SHARES OF LIMITED COMMON STOCK
- --------------------------------------------------------------------------------
SHARES TENDERED AT EXCHANGE RATIO
DETERMINED BY DUTCH AUCTION
|-|
|_| The undersigned wants to maximize the chance of having The Limited
accept for exchange all the shares of Limited Common Stock the
undersigned is tendering (subject to the possibility of proration).
Accordingly, by checking this one box INSTEAD OF ONE OF THE EXCHANGE
RATIO BOXES BELOW, the undersigned hereby tenders shares of Limited
Common Stock at, and am willing to accept, the Exchange Ratio
resulting from the Dutch auction tender process. This action could
result in receiving an Exchange Ratio as low as ___ of a share of A&F
Common Stock per share of Limited Common Stock or as high as ___ of a
share of A&F Common Stock per share of Limited Common Stock.
- --------------------------------------OR----------------------------------------
SHARES TENDERED AT EXCHANGE RATIO
DETERMINED BY STOCKHOLDER
|-|----------- |-|----------- |-|----------- |-|----------- |-|-----------
|-|----------- |-|----------- |-|----------- |-|----------- |-|-----------
|-|----------- |-|----------- |-|----------- |-|----------- |-|-----------
|-|----------- |-|----------- |-|----------- |-|----------- |-|-----------
|-|----------- |-|----------- |-|----------- |-|----------- |-|-----------
|-|----------- |-|----------- |-|----------- |-|----------- |-|-----------
I have read and understand the Offering Circular-Prospectus, the SARP
Committee Letter and the Notice, and all attachments thereto, and I agree to be
bound by the terms of the Exchange Offer. I hereby direct the Trustee to tender
these shares of Limited Common Stock on my behalf and to hold shares of A&F
Common Stock, if any, received in the Exchange Offer in an investment fund under
the Savings and Retirement Plan. I understand and declare that if the tender of
my shares of Limited Common Stock is accepted, the payment therefor will be full
and adequate compensation for these shares of Limited Common Stock in my
judgment, notwithstanding any potential fluctuation in the price of such shares
between the last day I can withdraw my tender and the date the Trustee exchanges
such shares.
- ------------------------------------- --------------------------------------
DATE SIGNATURE OF PARTICIPANT
Home Telephone:______________________
Work Telephone:______________________ ______________________________________
PLEASE PRINT NAME
- ------------------------------------- --------------------------------------
SOCIAL SECURITY NUMBER
--------------------------------------
PLEASE PRINT ADDRESS
NOTE: THIS TENDER INSTRUCTION FORM MUST BE COMPLETED AND SIGNED IF SHARES
OF LIMITED COMMON STOCK HELD IN THE SAVINGS AND RETIREMENT PLAN ARE TO BE
TENDERED. IF THE FORM IS NOT COMPLETED AND SIGNED, THE DIRECTIONS INDICATED WILL
NOT BE ACCEPTED. PLEASE RETURN THIS TENDER INSTRUCTION FORM TO THE
ADMINISTRATIVE COMMITTEE FOR THE SAVINGS AND RETIREMENT PLAN, 82 SOUTH STREET,
HOPKINTON, MA. 01748-9918 USING THE PREADDRESSED REPLY ENVELOPE PROVIDED WITH
YOUR TENDER MATERIALS. YOUR INSTRUCTION FORM MUST BE RECEIVED BY
______________,1998. YOUR DECISION WHETHER OR NOT TO HAVE YOUR PLAN SHARES
TENDERED WILL BE KEPT CONFIDENTIAL.
EXHIBIT 99.07
FORM OF
NOTICE TO SAVINGS AND RETIREMENT PLAN PARTICIPANTS
_________, 1998
TO: ALL PARTICIPANTS IN THE LIMITED, INC. SAVINGS AND RETIREMENT PLAN (THE
"SAVINGS AND RETIREMENT PLAN") WITH LIMITED COMMON STOCK CREDITED TO THEIR
ACCOUNT
The Limited, Inc. ("The Limited") has announced an offer (the "Exchange
Offer") to exchange up to 43,600,000 shares of Class A common stock, par value
$.01 per share ("A&F Common Stock"), of Abercrombie & Fitch Co., a subsidiary of
The Limited ("A&F"), for shares of common stock, par value $.50 per share (the
"Limited Common Stock"), of The Limited that are validly tendered by the
Expiration Date and not withdrawn or deemed withdrawn, at an Exchange Ratio not
greater than ___ nor less than ____ of a share of A&F Common Stock for each
share of Limited Common Stock tendered, upon the terms and subject to the
conditions set forth in the Offering Circular-Prospectus and in the related
Letter of Transmittal. See "Summary", "The Transactions" and "The Exchange
Offer" in the Offering Circular-Prospectus. Capitalized terms used herein shall
have the meanings ascribed to them in the Offering Circular-Prospectus and the
accompanying Letter from the Savings and Retirement Plan Administrative
Committee. This Exchange Offer commenced on __________, 1998, and will expire at
12:00 midnight, New York City time, on __________, 1998, unless the Exchange
Offer is extended. You, as a Savings and Retirement Plan participant, may
participate in this Exchange Offer by instructing the Trustee of the Savings and
Retirement Plan (by _____________, 1998) to tender your shares of Limited Common
Stock held in the Savings and Retirement Plan ("Plan Shares") in exchange for
shares of A&F Common Stock.
YOUR DECISION WHETHER OR NOT TO HAVE YOUR PLAN SHARES TENDERED WILL BE KEPT
CONFIDENTIAL.
Enclosed with this notice is a copy of documents describing the Exchange
Offer which have been furnished to holders of Limited Common Stock. Please read
these materials so that you may properly make your decision regarding this
Exchange Offer.
A Tender Instruction Form ([COLOR] form) is also enclosed for you to use to
direct the Trustee regarding the Exchange Offer. IF NO DIRECTION IS RECEIVED,
THE TRUSTEE WILL NOT TENDER ANY OF YOUR PLAN SHARES AND THEY WILL REMAIN IN YOUR
ACCOUNT IN THE SAVINGS AND RETIREMENT PLAN.
DO NOT CALL THE TRUSTEE, THE ADMINISTRATIVE COMMITTEE OR YOUR BENEFITS
ADMINISTRATOR TO GIVE YOUR DECISION REGARDING THE EXCHANGE OFFER. YOU MAY ONLY
RESPOND BY COMPLETING AND MAILING THE ENCLOSED TENDER INSTRUCTION FORM.
EXHIBIT 99.08
FORM OF
QUESTIONS AND ANSWERS ON
SAVINGS AND RETIREMENT PLAN TENDER RIGHTS AND PROCEDURES
A. DESCRIPTION OF THE EXCHANGE OFFER
1. WHICH DOCUMENTS DID I RECEIVE AND WHAT IS THEIR PURPOSE? You received the
following materials in this mailing:
-- Offering Circular-Prospectus. This document (white, bound document)
describes the Exchange Offer. PLEASE READ IT CAREFULLY.
-- Letter of Transmittal. This document ([COLOR] document) is part of the
"Exchange Offer" and therefore is being provided to you. However, it does
not apply to, or provide detailed instructions for, tendering Plan
Shares. Do NOT use it to tender Plan Shares. If you hold shares of
Limited Common Stock outside of the Savings and Retirement Plan, please
refer to the Letter of Transmittal for instructions on how to tender
those shares.
-- Letter from the Savings and Retirement Plan Administrative Committee (the
"SARP Committee Letter"). This transmits information about the Savings
and Retirement Plan and the Exchange Offer.
-- Notice to Savings and Retirement Plan Participants (white document you
are reading) which includes Questions and Answers on Savings and
Retirement Plan Tender Rights and Procedures.
-- Tender Instruction Form. ([COLOR] form) YOU MUST COMPLETE, SIGN AND MAIL
THIS DOCUMENT TO THE ADMINISTRATIVE COMMITTEE IN THE ENCLOSED ENVELOPE IF
YOU WISH TO DIRECT THE TRUSTEE TO TENDER YOUR PLAN SHARES. THIS DOCUMENT
IS POSTED WITH YOUR NAME AND SOCIAL SECURITY NUMBER. USE IT IF YOU WISH
TO DIRECT A TENDER OF YOUR SHARES.
-- Reply Envelope. A preaddressed envelope for your reply.
2. WHAT IS THE EXCHANGE OFFER? On __________, 1998, The Limited offered to
exchange in a modified "Dutch auction" up to 43,600,000 shares of A&F
Common Stock for shares of Limited Common Stock that are validly tendered
by the Expiration Date and not withdrawn or deemed withdrawn, at an
Exchange Ratio not greater than ___ nor less than ____ of a share of A&F
Common Stock for each share of Limited Common Stock tendered, upon the
terms and subject to the conditions set forth in the Offering
Circular-Prospectus and in the related Letter of Transmittal. This
Exchange Offer will be open from __________, 1998 until it expires at 12:00
midnight, New York City time, on __________, 1998, unless it is extended by
The Limited. Savings and Retirement Plan participants who hold Plan Shares
may provide for the tender of Plan Shares pursuant to this Exchange Offer
by so indicating on the enclosed Tender Instruction Form and returning it
as directed by __________, 1998.
The Exchange Offer is fully described in the Offering Circular-Prospectus
provided to you. PLEASE READ IT CAREFULLY.
3. WHAT IS A MODIFIED "DUTCH AUCTION?" A modified "Dutch auction" means that
you pick the exchange ratio at which you are willing to exchange some or all
of your shares of Limited Common Stock for shares of A&F Common Stock from
within the specified range of not more than ___ nor less than ___ of a share
of A&F for each share of The Limited. For information on a procedure
designed to ensure that you participate in the Exchange Offer, see Question
14.
4. WHAT IS THE "EXCHANGE RATIO?" The exchange ratio represents the number of
A&F shares which stockholders of The Limited will receive for each share of
Limited Common Stock tendered in the Exchange Offer.
5. HOW WILL THE LIMITED DECIDE ON THE FINAL EXCHANGE RATIO? The Limited will
select as the final exchange ratio the lowest exchange ratio within the
exchange ratio range that would permit the maximum number of the shares of
A&F Common Stock owned by The Limited to be exchanged in the Exchange Offer.
The final exchange ratio will apply to all tendering stockholders whose
shares of Limited Common Stock are accepted for exchange.
6. HOW DO I DECIDE WHETHER TO PARTICIPATE IN THE EXCHANGE OFFER? Whether you
should participate in the Exchange Offer depends on many factors. You
should consider, among other things, (i) your view of the relative values
of a single share of Limited Common Stock and a single share of A&F Common
Stock, (ii) the opportunity to receive the Anticipated Premium (see
Question 9) and (iii) your investment strategy with regard to the two
stocks. In addition, you should consider all of the factors described
under "Risk Factors" in the Offering Circular-Prospectus. None of the
Trustee, the Administrative Committee, The Limited and A&F and any of their
respective directors makes any recommendation as to whether you should
tender your Limited shares. You must make your own decision after reading
the documents provided to you and consulting with your advisors based on
your own financial position and requirements.
7. HOW MANY PLAN SHARES MAY I TENDER AND HOW DO I LEARN THAT NUMBER? The number
of shares of Limited Common Stock that you held under the Savings and
Retirement Plan as of __________, 1998, is set forth in the SARP Committee
Letter and on the Tender Instruction Form. You may tender all or any number
of such Plan Shares (excluding fractional Plan Shares, if any).
8. WHAT IF I HAVE SHARES IN MY SAVINGS AND RETIREMENT PLAN ACCOUNT AND ALSO
HOLD SHARES OUTSIDE OF THE SAVINGS AND RETIREMENT PLAN? If you have shares
of Limited Common Stock in the Savings and Retirement Plan and have other
shares of Limited Common Stock in your possession (or at a brokerage firm),
you will receive two or more sets of Exchange Offer materials. You should be
careful to follow the directions that apply to each kind of shares.
9. WHAT IS THE ANTICIPATED PREMIUM? Based on the closing trading prices for
Limited (NYSE: LTD; LSE: ) and A&F shares (NYSE: ANF) on ______,
1998, any of the designated exchange ratios would result in a Limited
stockholder receiving shares of A&F Common Stock with a market value
greater than the market value of the shares of Limited Common Stock
tendered for exchange. This greater value is referred to as the
"Anticipated Premium". We cannot, however, predict what the amount of the
Anticipated Premium, if any, will be or the prices at which shares of A&F
Common Stock or Limited Common Stock will trade over time.
You can calculate the Anticipated Premium using the following formula:
Exchange Ratio x Price of one A&F share
----------------------------------------- - 1
Price of one Limited share
For example: Assume a price of $____ for a Limited share and a price of
$____ for an A&F share (the closing trading prices of Limited and A&F shares
on __________, 1998). At an exchange ratio of ____ of a share of A&F for
each Limited share (the midpoint of the range of exchange ratios), the
Anticipated Premium would be approximately ___%. At the minimum exchange
ratio of ___, the Anticipated Premium would be approximately ___%. At the
maximum exchange ratio of ___, the Anticipated Premium would be
approximately ___%.
10. DO I DO ANYTHING IF I WANT TO RETAIN MY PLAN SHARES? No. If you want to
retain your Plan Shares, you do not need to take any action.
11. IF I DECIDE TO PARTICIPATE IN THE EXCHANGE OFFER, HOW DO I SELECT AN
APPROPRIATE EXCHANGE RATIO? In selecting an exchange ratio, you should
consider your view of the value of one share of Limited Common Stock
compared to that of one share of A&F Common Stock, as well as the level of
certainty that you desire that your tender will be accepted in the Exchange
Offer. The higher your exchange ratio, the lower the likelihood that your
shares will be accepted for exchange. Conversely, the lower your exchange
ratio, the higher the likelihood that your shares will be accepted for
exchange. A tender at an exchange ratio greater than the final exchange
ratio will not be accepted. See "The Exchange Offer--Determining to
Participate in the Exchange Offer--Selecting an Exchange Ratio", in the
Offering Circular-Prospectus.
12. WHAT HAPPENS IF I SELECT AN EXCHANGE RATIO HIGHER THAN THE FINAL EXCHANGE
RATIO? You will not participate in the Exchange Offer and Plan Shares
tendered on your behalf will be returned to the Savings and Retirement Plan.
13. WHAT HAPPENS IF I SELECT EITHER THE EXCHANGE RATIO SELECTED BY THE DUTCH
AUCTION OR A SPECIFIC EXCHANGE RATIO WHICH IS EQUAL TO OR LOWER THAN THE
FINAL EXCHANGE RATIO? You will participate in the Exchange Offer at the
final exchange ratio, but the actual number of your Plan Shares accepted for
exchange will depend on whether the Exchange Offer is oversubscribed.
14. HOW CAN I MAKE SURE THAT I WILL PARTICIPATE IN THE EXCHANGE OFFER? To ensure
participation in the Exchange Offer, you should check the box marked "Shares
Tendered at Exchange Ratio Determined by Dutch Auction" indicating that you
will accept whatever the final exchange ratio is determined to be. In this
case you will participate in the Exchange Offer, but the actual number of
your Plan Shares accepted for exchange will depend on whether the Exchange
Offer is oversubscribed. If the Exchange Offer is oversubscribed, you will
participate on a pro rata basis.
15. CAN I SELECT MORE THAN ONE EXCHANGE RATIO? The same shares may not be
tendered at more than one exchange ratio. You may, however, tender different
portions of your Limited shares at different exchange ratios, but you must
complete separate Tender Instruction Forms for each exchange ratio selected.
16. WHAT HAPPENS IF I INSTRUCT THE TRUSTEE TO TENDER MORE LIMITED SHARES THAN
ARE IN MY ACCOUNT? Your instructions will not be valid and no Plan Shares
will be tendered by the Trustee on your behalf.
17. WHAT IS PRORATION? Proration will occur if the Exchange Offer is
oversubscribed; that is, if the number of Limited shares tendered multiplied
by the final exchange ratio exceeds the number of A&F shares available for
exchange at the final exchange ratio. In this case, all Limited shares that
are tendered at or below the final exchange ratio will be accepted for
exchange on a pro rata basis at the final exchange ratio.
18. WHAT HAPPENS IF THE NUMBER OF LIMITED SHARES TENDERED IS SUCH THAT MORE THAN
39,240,000 A&F SHARES, BUT FEWER THAN 43,600,000 A&F SHARES, WOULD BE
EXCHANGED? A&F shares held by The Limited after completion of the Exchange
Offer will be distributed to its stockholders on a pro rata basis. This
distribution is referred to in the Offering Circular-Prospectus as the
"Spin-Off".
19. WHAT HAPPENS IF THE NUMBER OF LIMITED SHARES TENDERED IS SUCH THAT MORE THAN
43,600,000 SHARES OF A&F WOULD BE EXCHANGED, I.E., THE EXCHANGE OFFER IS
OVERSUBSCRIBED? All Limited shares which are tendered at or below the final
exchange ratio will be accepted for exchange on a pro rata basis at the
final exchange ratio. Any shares not accepted for exchange will be returned
to tendering stockholders.
20. WHEN DOES THE EXCHANGE OFFER EXPIRE? Although the Exchange Offer, proration
period and withdrawal rights will expire at 12:00 midnight, New York City
time, on__________, 1998, unless extended. Your instructions must be
received by the Savings and Retirement Plan Administrative Committee by
_____________, 1998, unless extended, in order to participate in the
Exchange Offer.
21. WHEN WILL TENDERING STOCKHOLDERS KNOW THE OUTCOME OF THE EXCHANGE OFFER?
Preliminary results of the Exchange Offer, including any preliminary
proration factor, will be announced by press release promptly after the
expiration of the Exchange Offer. Announcement of any final proration factor
should occur approximately seven business days after the expiration of the
Exchange Offer.
22. ARE THERE ANY CONDITIONS TO THE LIMITED'S OBLIGATION TO COMPLETE THE
EXCHANGE OFFER? Yes, The Limited's obligation to complete the Exchange Offer
is subject to the conditions outlined in the Offering Circular-Prospectus.
Among other things, the Exchange Offer will not close unless enough Limited
shares are tendered so that at least 39,240,000 shares of A&F stock can be
distributed to Limited stockholders. The number of Limited shares that must
be tendered to produce this result is referred to in the Offering
Circular-Prospectus as the "Trigger Amount".
23. WHAT ARE MY RIGHTS UNDER THE OFFER? The records of the Savings and
Retirement Plan indicate that shares of Limited Common Stock are allocated
to your Account. You may tender some or all of these Plan Shares. Because
all of these Shares are held in trust for your benefit, they are registered
in the name of the Trust. So, the Trust will actually tender Plan Shares as
you instruct the Trustee.
You must direct the Trustee if you want to tender your Plan Shares. The
Trustee will tender your Plan Shares only if directed. If you do not
respond, your Plan Shares will remain in your Account.
24. HOW DO I DIRECT THE PLAN TRUSTEE? The only way that you can tender your Plan
Shares is by completing the [COLOR] Tender Instruction Form as described,
signing and returning it to the Administrative Committee for the Savings and
Retirement Plan, 82 South Street, Hopkinton, MA 01748-9918, which will
process your instructions. The address is on the return envelope you should
use to return the Tender Instruction form.
THE TENDER INSTRUCTION FORM MUST BE RECEIVED BY THE ADMINISTRATIVE COMMITTEE
BEFORE 5:00 P.M., NEW YORK CITY TIME, ON _________________, 1998. YOU MUST
SIGN AND COMPLETE THE FORM FOR YOUR DIRECTION TO BE VALID.
TO PROPERLY DIRECT THE TRUSTEE TO TENDER PLAN SHARES ON YOUR BEHALF YOU
MUST:
-- INSTRUCTIONS. Read carefully and follow exactly the instructions in the
SARP Committee Letter and the Tender Instruction Form. These will tell
you how to direct the Plan Trustee regarding your Plan Shares.
-- FORM. Complete the enclosed [COLOR] Tender Instruction Form.
-- SHARES. Designate on the Tender Instruction Form the number of Plan
Shares (excluding fractional shares) you wish to be tendered.
-- EXCHANGE RATIO. Designate on the Tender Instruction Form the Exchange
Ratio at which you are tendering the Shares.
-- SIGNATURE. You must sign the Tender Instruction Form to complete your
instruction. Unless you sign the Tender Instruction Form, your direction
cannot be honored and the Tender Instruction Form will be void.
-- MAILING. A preaddressed return envelope has been enclosed with your
Exchange Offer materials. Use this envelope to return your completed
Tender Instruction Form if you wish to have the Trustee tender your Plan
Shares.
Please be precise in providing your instruction and please act PROMPTLY.
IF YOU DO NOT WISH TO TENDER YOUR PLAN SHARES, TAKE NO ACTION.
25. HOW DO I SEND INSTRUCTIONS TO THE ADMINISTRATIVE COMMITTEE? Please return
your instructions PROMPTLY, recognizing the slow delivery time inherent in
the U.S. mail today. You may mail your Tender Instruction Form to the
Administrative Committee for the Savings and Retirement Plan, 82 South
Street, Hopkinton, MA 01748-9918 in the preaddressed reply envelope that has
been provided for your reply or send it by an alternate faster means (such
as overnight courier). You may NOT fax your instructions. DO NOT DELIVER
YOUR INSTRUCTIONS TO YOUR HUMAN RESOURCES DEPARTMENT OR TO YOUR BENEFITS
ADMINISTRATOR.
26. MUST I PROVIDE DIRECTIONS TO THE ADMINISTRATIVE COMMITTEE? You must respond
IF you wish the Trustee to tender your Plan Shares. Do not respond if you do
not wish to tender your Plan Shares.
27. WHO WILL KNOW WHETHER I TENDERED MY PLAN SHARES? Your directions to the
Trustee are CONFIDENTIAL. Individual instructions will only be disclosed to
the recordkeeper as necessary to complete the tender.
28. CAN I CHANGE MY MIND AND WITHDRAW MY PLAN SHARES THAT I DIRECTED TO BE
TENDERED? Yes, but only if you perform the following steps:
-- You must send a signed notice of withdrawal to the Administrative
Committee for the Savings and Retirement Plan, 82 South Street,
Hopkinton, MA 01748-9918.
-- The notice of withdrawal must be in writing. You may fax your notice of
withdrawal to the Administrative Committee for the Savings and Retirement
Plan at fax number (508) 787-2651.
-- The notice of withdrawal must state your name, social security number,
the number of Plan Shares that you wish to withdraw from the Exchange
Offer and that you are withdrawing Plan Shares that you instructed the
Trustee to tender on your behalf.
-- The notice of withdrawal must be received by the Administrative Committee
before 5:00 p.m., New York City time, on _______________, 1998.
29. CAN I RE-TENDER MY PLAN SHARES? Yes. If you wish to re-tender your Plan
Shares you must complete another Tender Instruction Form and return it to
the Administrative Committee for receipt by _______________, 1998. You may
obtain another copy by faxing your request to (508) 787-2651.
30. WHO SHOULD I CALL IF I HAVE QUESTIONS ON THE EXCHANGE OFFER? For general
Exchange Offer-related questions please call D.F. KING at (800) 549-6864.
For Savings and Retirement Plan-related questions, please call (800)
637-3766.
31. HOW CAN I OBTAIN COPIES OF ADDITIONAL SAVINGS AND RETIREMENT PLAN-RELATED
DOCUMENTS? You may request additional copies of the Tender Instruction Form,
Notice to Savings and Retirement Plan Participants, Letter from the Savings
and Retirement Plan Administrative Committee and Offering
Circular-Prospectus by fax at (508) 787-2651 or by mail to the
Administrative Committee for the Savings and Retirement Plan, 82 South
Street, Hopkinton, MA 01748-9918. Your request must include your name,
address and/or fax number, and the name of the item you are requesting.
B. OPERATION OF THE SAVINGS AND RETIREMENT PLAN DURING THE EXCHANGE OFFER
32. WHAT HAPPENS TO CONTRIBUTIONS ALLOCABLE TO ACCOUNTS MADE AFTER ________,
1998? Beginning ________, 1998, the Trustee stopped purchasing shares of
Limited Common Stock for allocation to Accounts. Employer and participant
contributions made to the Savings and Retirement Plan, and dividends and
other funds which are normally allocated to acquire shares of Limited Common
Stock, which are received by the Savings and Retirement Plan during the
period of the Exchange Offer and for 10 business days thereafter (while the
results are tabulated) will be accumulated and invested in a short-term
fund. Thereafter, upon the cessation of legal restrictions, purchases by the
Trustee will resume and the accumulated funds will be invested pursuant to
the investment elections then in effect.
33. WHAT HAPPENS IF I REQUEST A DISTRIBUTION, WITHDRAWAL OR INVESTMENT FUND
TRANSFER FOLLOWING THE ANNOUNCEMENT OF THE EXCHANGE OFFER DURING THE OFFER
PERIOD? Distributions, withdrawals or investment fund transfers from the
Savings and Retirement Plan may be delayed until after the conclusion of the
Exchange Offer. Authorized distributions, withdrawals or investment fund
transfers before or during this period will be processed as soon as
reasonably feasible.
34. WHEN MAY I REQUEST A CHANGE IN MY INVESTMENT ELECTIONS? You may change your
investment election for future contributions or reallocate your existing
Account balances at the beginning of each month under the Savings and
Retirement Plan's normal rules. You must call the SARP Line by the 20th day
of the month for your investment election change to be effective the first
day of the following month, subject to delays required in connection with
the Exchange Offer. SECTION 16 INSIDERS WHO HAVE TRANSFERRED AMOUNTS INTO
THEIR ACCOUNT FROM OTHER INVESTMENT FUNDS UNDER THE SAVINGS AND RETIREMENT
PLAN WITHIN THE PRECEDING SIX MONTHS SHOULD BE AWARE THAT THE TENDER OF
THEIR PLAN SHARES IN THE EXCHANGE OFFER WILL NOT BE EXEMPT FROM THE
SHORT-SWING PROFIT RECOVERY PROVISIONS OF SECTION 16(b) OF THE EXCHANGE ACT.
IN ANY EVENT, SECTION 16 INSIDERS WHO WISH TO PARTICIPATE IN THE EXCHANGE
OFFER SHOULD CONSULT WITH COUNSEL.
35. WILL I BE TAXED ON ANY PROCEEDS RECEIVED BY THE SAVINGS AND RETIREMENT PLAN
IN 1998 FROM THE PLAN SHARES THAT ARE TENDERED UNDER THE SAVINGS AND
RETIREMENT PLAN? No. Because tender proceeds received from Plan Shares will
be received by and held in the Savings and Retirement Plan, they will not be
subject to current income taxes.
C. REINVESTMENT OF EXCHANGE OFFER PROCEEDS
36. HOW WILL THE SAVINGS AND RETIREMENT PLAN INVEST THE SHARES OF A&F COMMON
STOCK RECEIVED UPON EXCHANGE OF THE PLAN SHARES THAT ARE TENDERED? Shares of
A&F Common Stock received from this Exchange Offer will be held by the
Trustee in a separate investment fund under the Savings and Retirement Plan.
You may reallocate amounts denominated in A&F Common Stock under the Savings
and Retirement Plan to other investment funds, mindful of the possible tax
consequences noted below. You may not make new contributions to, or
reallocate amounts from other investment funds to, the A&F Common Stock
Fund.
D. CERTAIN TAX INFORMATION
You should be aware that the disposition of any shares of A&F Common Stock
received pursuant to the exchange of Plan Shares in the Exchange Offer may,
in certain circumstances, result in certain tax consequences upon the
ultimate distributions of your account, pursuant to which, but for
participation in the Exchange Offer, you would otherwise receive shares of
Limited Common Stock.
Special tax rules apply to certain distributions from the Savings and
Retirement Plan that consist, in whole or in part, of shares of Limited
Common Stock. Generally, taxation of net unrealized appreciation ("NUA"), an
amount equal to the excess of the value of such shares at distribution over
the cost or other basis of such shares (which will vary depending on whether
the distribution qualifies for lump sum treatment) will be deferred until
the shares are sold following distribution. Moreover, if prior to a
distribution shares of Limited Common Stock are exchanged for shares of A&F
Common Stock in a tax-free exchange, as would be the case in the Exchange
Offer, the cost or other basis of such newly acquired shares of A&F Common
Stock for NUA purposes will be the cost or other basis of the tendered
shares of Limited Common Stock.
If the shares of A&F Common Stock received pursuant to the Exchange Offer
are disposed of within the Savings and Retirement Plan and the proceeds of
such disposition are directly reinvested in the Limited Stock Fund within 90
days, the cost or other basis of the shares of Limited Common Stock for NUA
purposes will be the same as the cost or other basis of the disposed of
shares of A&F Common Stock.
Conversely, if shares of A&F Common Stock received pursuant to the Exchange
Offer are disposed of within the Savings and Retirement Plan and the
proceeds of such disposition are not directly reinvested in The Limited
Stock Fund under the Savings and Retirement Plan, the opportunity to retain
for NUA purposes the cost or other basis of the Plan Shares tendered, and
the tax-deferral treatment of the NUA calculated in reference to such basis,
will be lost.
The foregoing is only a brief summary of complicated provisions of the
Internal Revenue Code. You are strongly urged to consult with your tax
advisor as to the issues described above.
-----------------------------------------
Exhibit 99.09
[MERRILL LYNCH LETTERHEAD]
FORM OF
NOTICE TO PARTICIPANTS IN STOCK PURCHASE PLAN
March __, 1998
Dear Client:
Enclosed for your consideration is the Offering Circular-Prospectus dated
____________, 1998 (the "Offering Circular-Prospectus") of The Limited, Inc., a
Delaware corporation ("The Limited"), which describes The Limited's offer to its
stockholders (the "Exchange Offer") to exchange up to 43,600,000 shares of Class
A Common Stock, par value $0.01 per share, of Abercrombie & Fitch Co. ("A&F
Common Stock) for shares of Common Stock, par value $.50 per share, of The
Limited ("Limited Common Stock") that are validly tendered and not withdrawn (or
deemed withdrawn) by the Expiration Date (as defined below) at an exchange ratio
not greater than ______ nor less than ______ of a share of A&F Common Stock for
each share of Limited Common Stock tendered and exchanged, upon the terms and
subject to the conditions set forth in the Offering Circular-Prospectus. See
"Summary", "The Transactions" and "The Exchange Offer" in the Offering
Circular-Prospectus.
If you wish to exchange all or any number of your shares of Limited Common Stock
in your account pursuant to the Exchange Offer you must contact a Customer
Service Representative at our toll-free Client Services number 1-800-637-3766
(U.S. Residents) or our Client Services number 1-732-563-7305 (Overseas
Residents) by 3:30 p.m. (New York City time), ____________, 1998. Our
representatives are available Monday through Friday 8:00 a.m. to 7:00 p.m. (New
York City time).
Please instruct the Merrill Lynch Customer Service Representative clearly if you
wish to tender some shares of Limited Common Stock in your account at one
exchange ratio and other shares of Limited Common Stock in your account at
another exchange ratio.
Fractional shares held in your account will not be entitled to participate in
the Exchange Offer.
Shares of A&F Common Stock received in respect of any shares of Limited Common
Stock tendered and accepted for exchange by The Limited will be held in your
account. Any shares of Limited Common Stock tendered but not accepted for
exchange by The Limited will be returned to your account.
If at any time you have instructed Merrill Lynch to tender your shares, you may
instruct Merrill Lynch to withdraw them from tender. To do so, you must contact
a Customer Service Representative as explained above. In the event that you
choose to withdraw your shares from tender, we must receive withdrawal
instructions by 3:30 p.m. (New York City time), on ____________, 1998.
Please note that Merrill Lynch will tender the specific number of shares that
you instruct us to tender, up to all of your shares in your account, at the time
of your call to our Merrill Lynch Customer Service Representative. If your
account acquires additional shares after you have given Merrill Lynch your
tender instructions, these shares will not be tendered unless you call again,
and instruct Merrill Lynch to also tender the additional shares in your account.
In the event that you instruct Merrill Lynch to tender your Limited Common
Stock, your shares will be frozen to prohibit you from transferring the stock
that has been tendered or from taking a distribution from your account. You may
have your account unfrozen at any time by withdrawing your shares from tender as
described above.
The Exchange Offer is conditioned upon the tender of a sufficient number of
shares of Limited Common Stock so that at least 39,240,000 shares of A&F Common
Stock are distributed in the Exchange Offer. The Exchange Offer is also subject
to certain other conditions, per the enclosed Offering Circular-Prospectus. The
shares are exchanged without any brokerage fees or commissions. Please note that
this exchange offer may be subject to proration.
THE OFFERING CIRCULAR-PROSPECTUS IS BEING FORWARDED TO YOU AS THE BENEFICIAL
OWNER OF SHARES OF LIMITED COMMON STOCK HELD ON YOUR BEHALF UNDER THE PLAN, BUT
NOT REGISTERED IN YOUR NAME. A TENDER OF SUCH SHARES OF LIMITED COMMON STOCK MAY
ONLY BE MADE BY MERRILL LYNCH AS THE HOLDER OF RECORD AND PURSUANT TO YOUR
INSTRUCTIONS.
The maximum number of shares of Limited Common Stock which will be accepted for
exchange will be that number of shares which, when multiplied by the Final
Exchange Ratio, equals 43,600,000 shares of A&F Common Stock. If more than such
maximum number of shares of Limited Common Stock are tendered at Exchange Ratios
at or below the Final Exchange Ratio, the Exchange Offer will be oversubscribed,
and shares of Limited Common Stock tendered at or below the Final Exchange Ratio
will be subject to proration in accordance with the terms set forth in the
Offering Circular-Prospectus under "The Exchange Offer-Terms of the Exchange
Offer".
Before making a decision, you should read the enclosed Offering
Circular-Prospectus carefully. If you take no action, the shares in your account
will not be tendered by Merrill Lynch.
NONE OF THE LIMITED, A&F, MERRILL LYNCH, THE BOARD OF DIRECTORS OF THE LIMITED
OR THE BOARD OF DIRECTORS OF A&F MAKES ANY RECOMMENDATION TO ANY HOLDERS OF
LIMITED COMMON STOCK AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING SHARES OF
LIMITED COMMON STOCK PURSUANT TO THE EXCHANGE OFFER. EACH STOCKHOLDER OF THE
LIMITED MUST MAKE HIS OR HER OWN DECISION WHETHER TO TENDER SHARES OF LIMITED
COMMON STOCK PURSUANT TO THE EXCHANGE OFFER AND, IF SO, HOW MANY SHARES TO
TENDER AND AT WHAT EXCHANGE RATIO TO TENDER SUCH SHARES AFTER READING THE
OFFERING CIRCULAR-PROSPECTUS AND CONSULTING WITH HIS OR HER ADVISORS BASED ON
HIS OR HER OWN FINANCIAL POSITION AND REQUIREMENTS.
The above offer, proration period, and withdrawal rights will expire at 12:00
Midnight, (New York City time) on ____________, 1998, unless extended. However,
you must contact a Customer Service Representative at the above toll-free number
by 3:30 p.m. if you wish to tender all or any number of your shares of Limited
Common Stock.
Sincerely,
Merrill Lynch Group Employee Services
