<PAGE> 1
As filed with the Securities and Exchange Commission on December 14, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------
AMERICAN EAGLE OUTFITTERS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 5600 25-1724320
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification No.)
---------------------------
</TABLE>
150 Thorn Hill Drive
Warrendale, Pennsylvania 15086-7528
(724)776-4857
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------------------
George Kolber
Vice Chairman and Chief Operating Officer
American Eagle Outfitters, Inc.
150 Thorn Hill Drive
Warrendale, Pennsylvania 15086-7528
(724) 776-4857
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------------
Copies of Correspondence to:
Neil Bulman, Jr., Esq.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215-6194
(614) 227-2219
---------------------------
Approximate date of commencement of proposed sale of the securities to the
public:
From time to time after the Effective Date of this Registration Statement, as
determined by market conditions.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any securities being registered on this Form are to be offered on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please 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(c) under
the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Offering Registration
Securities to be Registered Registered Per Share* Price* Fee*
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value....... 500,000 $54.46875 $27,234,375 $7,571
- -------------------------------------------------------------------------------------------------------------------
* Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c), based on the
average high and low prices of the Common Stock as reported on the Nasdaq National Market on December 11,
1998.
</TABLE>
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 OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION - DECEMBER 14, 1998
PROSPECTUS
AMERICAN EAGLE OUTFITTERS, INC.
150 THORN HILL DRIVE
WARRENDALE, PENNSYLVANIA 15086-7528
(724) 776-4857
500,000 SHARES
COMMON STOCK
------------------------------------
All of the 500,000 shares of our Common Stock covered by this
Prospectus (the "Shares") may be offered for sale from time to time by and for
the account of certain of our shareholders (the "Selling Shareholders") as more
fully described in this Prospectus. We will not receive any proceeds from the
sale of Shares by the Selling Shareholders. See "Use of Proceeds," "Selling
Shareholders," and "Plan of Distribution."
This Prospectus relates to 500,000 shares of Common Stock that we
originally issued to Sam Forman, former President of American Eagle, prior to
our initial public offering. The Selling Shareholders acquired the Shares as
members of a limited liability company that purchased the Shares in 1995 from
Mr. Forman in a private transaction. In December, 1998, the Shares were
distributed to the Selling Shareholders in a partial redemption of their
interest in the limited liability company. See "Selling Shareholders."
The Selling Shareholders, directly or indirectly through agents,
broker-dealers, or underwriters to be designated, may sell the Shares, from time
to time on terms to be determined at the time of sale. To the extent required,
we will provide the following information in an accompanying supplement to this
Prospectus ("Prospectus Supplement"):
- - the specific Shares to be sold;
- - the public offering price; and
- - the names of any such agent, broker-dealer, or underwriter and any
applicable commission or discount.
The Selling Shareholders reserve the sole right to accept or reject, in whole or
in part, any proposed purchase of the Shares to be made in the manner set forth
above.
-----------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
NO DEALER, SALESPERSON, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFER MADE IN THIS PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY AMERICAN EAGLE, THE SELLING SHAREHOLDERS OR ANY UNDERWRITER, DEALER, OR
AGENT. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN
THE REGISTERED SECURITIES TO WHICH IT RELATES OR AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, TO ANY PERSON IN ANY JURISDICTION WHERE SUCH
OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF.
------------------------------------
The Common Stock is listed on the Nasdaq National Market under the symbol
"AEOS." On December 9, 1998, the closing price per share of the Common Stock on
the Nasdaq National Market was $57.75.
The date of this prospectus is December __, 1998
<PAGE> 3
TABLE OF CONTENTS
Available Information ........................................... 2
Information Incorporated By Reference ........................... 2
The Company ..................................................... 3
Use of Proceeds ................................................. 3
Selling Shareholders ............................................ 3
Plan of Distribution ............................................ 4
Experts ......................................................... 4
Legal Matters ................................................... 4
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and its rules and
regulations. Under the Exchange Act, we must file reports, proxy statements, and
other information with the Securities and Exchange Commission (the
"Commission"). The public may inspect and copy such reports, proxy statements,
and other information we have filed at:
Public Reference Room
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-0001
or at the public reference facilities of the regional
offices of the Commission at:
500 West Madison Street
Suite 1400
Chicago, Illinois 60661-2511; and
7 World Trade Center
Suite 1300
New York, New York 10048-1397.
You may obtain information on the Public Reference Room's operation by calling
the Commission at 1-800-SEC-0330. Upon payment of the fees prescribed in the
Commission's rules and regulations, you may also obtain copies of such materials
from:
Public Reference Section
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
In addition, you may access these materials electronically by means of the
Commission's home page on the Internet at:
http://www.sec.gov.
Our common stock is listed on the Nasdaq National Market, and
accordingly you may inspect and copy our reports and other information at:
Nasdaq Stock Market
1735 K. Street N.W.
Washington, D.C. 20006-1504
We have filed with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"), and its rules and regulations, a Registration
Statement on Form S-3, as it may be amended (the "Registration Statement"), with
respect to the Shares offered by this Prospectus. However, this Prospectus does
not contain all of the information included in the Registration Statement.
Pursuant to the Commission's rules and regulations, we have omitted certain
portions of the Registration Statement. Any statements contained in this
Prospectus or in any document incorporated by reference into this Prospectus
concerning the provisions of any contract or other document are not necessarily
complete, and in each instance reference is made to the copy of such contract or
other document filed as an exhibit to the Registration Statement or other
document, each such statement being qualified in its entirety by such reference.
You may inspect and copy the Registration Statement (and its exhibits) from the
Commission at prescribed rates at:
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington D.C. 20549-0001
You may also access these materials electronically by means of the Commission's
home page on the Internet at http://www.sec.gov.
INFORMATION INCORPORATED BY
REFERENCE
We incorporate by reference the following documents, which we have
previously filed with the Commission pursuant to Sections 13(a), 14 or 15(d) of
the Exchange Act :
(1) Report on Form 10-K (filed April 24, 1998) for the year ended
January 31, 1998;
(2) Quarterly Report on Form 10-Q and 10- Q/A (filed June 12 and June
15, 1998, respectively) for the quarter ended May 2, 1998;
(3) Quarterly Report on Form 10-Q (filed September 15, 1998) for the
quarter ended August 1, 1998;
(4) Quarterly Report on Form 10-Q (filed November 24, 1998) for the
quarter ended October 31, 1998.
(5) Proxy Statement for the Annual Meeting of Shareholders held on June
3, 1998, (filed on May 5, 1998);
(6) Proxy Statement (filed September 28, 1998) for the Special Meeting
of Shareholders held on October 22, 1998; and
(7) Preliminary Proxy Statement (filed December 9, 1998) for the
Special Meeting of Shareholders held in January, 1999.
In addition, we incorporate by reference the description of our Common
Stock, which is
-2-
<PAGE> 4
contained in our Form 8-A (Registration No. 0-23760) filed with the Commission
pursuant to Section 12 of the Exchange Act, as the same may be updated in any
amendment or report filed for the purpose of updating such description.
All documents we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this Prospectus and before the termination of
the offering of the Shares by this Prospectus shall be deemed to be incorporated
by reference in this Prospectus and to be a part of this document from the date
it is filed. Any statement incorporated by reference in this Prospectus shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
We will promptly furnish, without charge, a copy of any and all of the
information that we have incorporated by reference in this Prospectus upon the
written or oral request of any potential investor to:
William P. Tait, Secretary
American Eagle Outfitters, Inc.
150 Thorn Hill Drive
Warrendale, Pennsylvania 15086-7528.
(724)776-4857
THE COMPANY
American Eagle Outfitters, Inc. is a leading specialty retailer of
women's and men's quality casual lifestyle apparel, footwear, outerwear and
accessories. Our objective is to completely outfit our core customers with
American Eagle Outfitters(R) products, which feature:
- - denim, khakis and skirts;
- - wool and cotton sweaters;
- - casual tops and shirts;
- - footwear;
- - outerwear; and
- - accessories such as belts, socks and bags.
As of November 30, 1998, we operated 386 mall-based stores in 41 states
principally in the Midwest, Northeast and Southeast. Our principal offices are
located at 150 Thorn Hill Drive, Warrendale, Pennsylvania 15086-7528 and our
telephone number is (724) 776-4857.
USE OF PROCEEDS
The proceeds from the sale of the Shares offered by this Prospectus are
solely for the Selling Shareholders' account. Accordingly, we will not receive
any of the proceeds from the sale of Shares by the Selling Shareholders.
SELLING SHAREHOLDERS
S.H.D. Investments, Inc., a California limited liability company
("SHD"), purchased 2,250,000 shares, as adjusted for stock splits (the
"Purchased Shares"), of our common stock in a private transaction from Sam
Forman, the former President of American Eagle, in February, 1995. Mr. Forman
acquired the Purchased Shares prior to our initial public offering. In December
1998, SHD redeemed a portion of the interests in the limited liability company
then held by the Selling Shareholders and, in connection with such redemption,
distributed the Shares to the Selling Shareholders. After the distribution, SHD
owns 1,034,375 shares of our Common Stock. Although neither Selling Shareholder
is an affiliate of American Eagle, companies controlled by the Selling
Shareholders sell goods and products to us on terms and conditions which are
customary in the industry. These relationships are described in our Proxy
Statement for our Annual Meeting of Shareholders held on June 3, 1998, which is
incorporated herein by reference.
The following table sets forth certain information regarding the
beneficial ownership of our Common Stock by each Selling Shareholder on December
10, 1998:
<TABLE>
<CAPTION>
Number of Shares Number of
Shares Before Being Shares After
the Offering(1) Offered the Offering(1)
--------------- ------- ---------------
<S> <C> <C> <C>
Paul Guez 258,700 250,000 8,700
The Guez Family Trust 250,000 250,000 0
U/D/T December 6, 1996
</TABLE>
(1) In each case, the total number of shares owned by each Selling
Shareholder under this registration statement is less than 1% of the
total outstanding shares both before and after the offering.
-3-
<PAGE> 5
PLAN OF DISTRIBUTION
From time to time the Selling Shareholders, or their pledgees, donees,
transferees, and other successors in interest, may offer and sell the Shares
covered by this Prospectus. The Selling Shareholders will act independently of
American Eagle in making decisions with respect to the timing, manner, and size
of each sale. To our knowledge, the Selling Shareholders have not entered into
any agreement, arrangement, or understanding with any particular brokers or
market makers that will participate in the offering.
The Selling Shareholders may sell Shares in any of the following
transactions:
(i) through broker-dealers;
(ii) through agents; or
(iii) directly to one or more purchasers.
Occasionally, the distribution of the Shares by the Selling Shareholders may be
effected in one or more transactions in the over-the-counter market, in the
Nasdaq National Market, or in privately negotiated transactions at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, or at negotiated prices. In addition, any Shares covered by this
Prospectus which qualify for sale pursuant to Rule 144 of the Securities Act may
be sold under Rule 144 rather than pursuant to this Prospectus.
In connection with the distribution of the Shares or otherwise, the
Selling Shareholders may also:
(1) Enter into hedging transactions with broker-dealers. In connection
with such transactions, broker-dealers may engage in short sales of the
Shares registered under this Prospectus in the course of hedging the
positions they assume with the Selling Shareholders;
(2) Sell shares short and redeliver the Shares to close out such short
positions;
(3) Enter into option or other transactions with broker-dealers which
require the delivery to the broker-dealer of the Shares registered
under this Prospectus, which the broker-dealer may resell or otherwise
transfer pursuant to this Prospectus; and
(4) Loan or pledge the Shares registered under this Prospectus to a
broker-dealer, and the broker-dealer may sell the Shares so loaned or,
upon a default, the broker-dealer may effect sales of the pledged
Shares pursuant to this Prospectus.
Underwriters, broker-dealers, or agents may receive compensation in the
form of commissions, discounts, or concessions from the Selling Shareholders in
amounts to be negotiated in connection with each sale of the Shares. Such
underwriters, broker-dealers, or agents who participate in the distribution of
the Shares may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act, and any profit on the sale of the Shares by them
and any commissions, discounts, or concessions received by any such
underwriters, broker-dealers, or agents might be deemed to be underwriting
discounts and commissions under the Securities Act.
At the time a particular offer is made, to the extent required, we will
distribute a Prospectus Supplement which will set forth:
- - the aggregate number of Shares being
offered;
- - the terms of the offering, including the name
or names of any underwriters, broker-
dealers, or agents;
- - any commissions, discounts, or concessions
and other items constituting compensation
from the Selling Shareholders; and
- - any commissions, discounts, or concessions
allowed or repaid to broker-dealers.
Certain of the underwriters, broker-dealers, agents, or the Selling
Shareholders may have other business relationships with us and our affiliates in
the ordinary course of business.
The Selling Shareholders have agreed to indemnify us and certain other
related parties for certain liabilities in connection with the registration of
the Shares offered by this Prospectus.
EXPERTS
The consolidated financial statements of American Eagle Outfitters,
Inc. as of January 31, 1998, February 1, 1997, and February 3, 1996 and for the
years ended January 31, 1998, February 1, 1997, the six months ended February 3,
1996 and the year ended July 29, 1995, which we have incorporated by reference
into this Prospectus, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their respective reports thereon in reliance upon such
reports given upon such firm's authority as experts in auditing and accounting.
With respect to the unaudited consolidated financial information of
American Eagle for the quarters ended May 2, 1998, August 1, 1998, and October
31, 1998, incorporated by reference into this Prospectus, Ernst & Young have
reported that they have applied limited procedures in accordance with
professional standards for a review of such information. However, their separate
reports included in American Eagle's Quarterly Reports on Form 10-Q for the
quarters ended May 2, 1998, August 1, 1998, and October 31, 1998, and
incorporated herein by reference, state that they did not audit and they do not
express an opinion on that interim financial information. Accordingly, the
degree of reliance on their reports on such information should be restricted
considering the limited nature of the review procedures applied. The independent
auditors are not subject to the liability provisions of Section 11 of the
Securities Act for their reports on the unaudited interim financial information
because that report is not a "report" or a "part" of the Registration Statement
prepared or certified by the auditors within the meaning of Sections 7 and 11 of
the Securities Act.
LEGAL MATTERS
The validity of the shares of Common Stock offered by this Prospectus
has been passed upon for American Eagle by Porter, Wright, Morris & Arthur,
Columbus, Ohio.
-4-
<PAGE> 6
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection with
the sale and distribution of the securities being registered hereby, other than
underwriting discounts and commissions, if any. All amounts shown are estimates,
except the SEC registration fee:
SEC registration fee ............................. $ 7,571
Printing and engraving fee ....................... 2,000*
Legal fees and expenses .......................... 12,000*
Accounting fees and expenses ..................... 6,500*
Miscellaneous fees and expenses .................. 1,929*
Total ..................................... $ 30,000
=========
*Estimated
All the costs identified above will be paid by the Selling Shareholders.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Article Seventh of American Eagle's Certificate of Incorporation
provides that American Eagle shall, to the fullest extent permitted by
applicable law as then in effect, indemnify any person who was or is a party, or
is threatened to be made a party, to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that he was a director, officer, or employee
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The Corporation shall indemnify against all
expenses (including attorneys' fees), judgements, fines and amounts paid in
settlement actually and reasonably incurred by him in connection therewith.
Without limiting the generality of the foregoing, the Corporation may enter into
one or more agreements with any person that provide for indemnification greater
or different than that provided in Article Seventh.
Article Seventh expressly states that neither the amendment nor repeal
of the By-Laws or the Certificate of Incorporation shall adversely affect any
right to indemnification for acts occurring prior to such amendment or repeal.
The right of indemnification and advancement of expenses provided by Article
Seventh is not exclusive of any other rights of indemnification or advancement
of expenses that may be available.
All indemnification rights in Article Seventh and Article IX of
American Eagle's By-Laws are contract rights. If any provision of Article IX is
held invalid, illegal or unenforceable, the remaining provisions of Article IX
shall not be affected. An indemnitee also may elect, as an alternative to the
Article IX procedures, to follow procedures authorized by applicable corporate
law or statute. Article IX sets forth specific procedures for the advancement of
expenses and for the determination of entitlement to indemnification.
Advancement of expenses are to be paid by the Corporation within 20
days after the receipt by the Corporation of a statement or statements from the
claimant requesting such advance or advances provided that the claimant delivers
an undertaking to repay all amounts so advanced unless it shall ultimately be
determined that such person is entitled to be indemnified. To obtain
indemnification, a claimant shall submit to the Corporation a written request,
including therein or therewith such documentation and information as is
reasonably available to the
II-1
<PAGE> 7
claimant and is reasonably necessary to determine and to what extent the
claimant is entitled to indemnification. In the event the determination of
entitlement is to be made by Independent Counsel as set forth in the Certificate
of Incorporation, the Independent Counsel shall be selected by the Board of
Directors. If it is so determined that the claimant is entitled to
indemnification, payment to the claimant shall be made within 10 days after such
determination. If a claim has not been paid in full by the Corporation within
thirty days after a written claim has been received by the Corporation, the
claimant may at any time bring suit against the Corporation to recover the
unpaid amount and, if successful in whole or in part, the claimant shall also be
entitled to be paid the expense of prosecuting such claim.
If a determination shall be made that the claimant is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding. The Corporation shall be precluded from asserting in any
judicial proceeding commenced pursuant to Article IX that the procedures and
presumptions of the By-Laws are not valid, binding, and enforceable and shall
stipulate in such proceeding that the Corporation is bound by all the provisions
of the By-Laws.
(b) Under Section 145 of the Delaware Law, indemnification of any
person who is or was a party or threatened to be made so in any action by reason
of the fact that he is or was a director, officer, employee or agent of the
corporation or was serving as such of another corporation of other enterprise at
the request of the corporation is permitted against expenses, fines and amounts
paid in settlement actually and reasonably incurred by him in such proceeding
where the indemnified person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation and in
criminal actions where he had no reasonable cause to believe his conduct was
unlawful. Indemnification is also permitted in lawsuits brought by or on behalf
of the corporation if the standards of conduct described above are met, except
that no indemnification is permitted in respect to any matter in which the
person is adjudged to be liable to the corporation unless a court shall
determine that indemnification is fair and reasonable in view of all the
circumstances of the case. Indemnification against expenses (including
attorneys' fees) actually and reasonably incurred by directors, officers,
employees and agents is required under Section 145 of the Delaware Law in those
cases where the person to be indemnified has been successful on the merits or
otherwise in defense of a lawsuit of the type described above. In cases where
indemnification is permissive, a determination as to whether the person met the
applicable standard of conduct must be made (unless ordered by a court) by
majority vote of the disinterested directors, by independent legal counsel, or
by the stockholders. Such indemnification rights are specifically not deemed to
be exclusive of other rights of indemnification by agreement or otherwise and
the corporation is authorized to advance expenses incurred prior to the final
disposition of a matter upon receipt of an undertaking to repay such amounts on
a determination that indemnification was not permitted in the circumstances of
the case.
(c) Under Section 145 of the Delaware Law and Article IX of the
By-Laws, American Eagle may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, or agent of the Corporation,
or who, while serving in such capacity, is or was at the request of American
Eagle, a director, officer, employee or agent of another corporation or other
enterprise, against liability asserted against or incurred by such person in any
such capacity whether or not American Eagle would have the power to provide
indemnity under Section 145 or the By-Laws. American Eagle has obtained
insurance which, subject to certain exceptions, insures the directors and
officers of the Corporation and its subsidiaries.
(d) American Eagle has succeeded to indemnification contracts entered
into by American Eagle Outfitters, Inc., an Ohio corporation with its directors
and certain officers which provide that such directors and officers will be
indemnified to the fullest extent provided by Section 145 of the Delaware Law
(or such other future statutory provision authorizing or permitting
indemnification) against all expenses (including attorneys' fees), judgments,
fines and settlement amounts, actually and reasonably paid or incurred by them
in any action or proceeding, including any action by or in the right of American
Eagle, by reason of the fact that they were a director, officer, employee or
agent of American Eagle, or were serving at the request of American Eagle as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
No indemnity will be provided under such indemnification contracts (i)
except to the extent that the aggregate losses to be indemnified pursuant
thereto exceed the amount for which the indemnitee is indemnified
II-2
<PAGE> 8
pursuant to any directors and officers liability insurance purchased and
maintained by American Eagle; (ii) in respect to remuneration paid to an
indemnitee if it shall be determined by a final judgment that such remuneration
was in violation of law; (iii) on account of any suit in which judgment is
rendered against an indemnitee for an accounting of profits made from the
purchase or sale by indemnitee of securities of American Eagle pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state or local
statutory law; (iv) on account of the indemnitee's act or omission being finally
adjudged to have been not in good faith or involving intentional misconduct or a
knowing violation of law; or (v) if a final decision by a court having
jurisdiction in the matter shall determine that such indemnification is not
lawful.
(e) Article Seventh of American Eagle's Certificate of Incorporation
provides that a director of American Eagle shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to American Eagle 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 General Corporation Law of the
State of Delaware; or (iv) for any transaction from which the director derived
any improper personal benefit.
The above discussion of American Eagle's By-Laws, Certificate of
Incorporation, indemnification agreements, and of Section 145 of the Delaware
Law is not intended to be exhaustive and is respectively qualified in its
entirety by such By-Laws, Certificate of Incorporation and statutes.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C> <C> <C>
5 * Opinion of Porter, Wright, Morris & Arthur regarding legality.
23(a) Consent of Porter, Wright, Morris & Arthur (included in Exhibit 5).
23(b) * Consent of Ernst & Young LLP.
24 * Powers of Attorney.
99 * Registration Agreement between the Registrant and American Eagle Outfitters, Inc.
dated December 4, 1998.
</TABLE>
- ----------------------------------
* Filed with this report.
ITEM 17. UNDERTAKINGS.
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 of 1933; (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 a 20% 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 of 1933, each
such post-
II-3
<PAGE> 9
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 undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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 offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Columbus, State of Ohio, on this 11th day of December,
1998.
AMERICAN EAGLE OUTFITTERS, INC.
By: /s/George Kolber
----------------------------------
George Kolber, Vice Chairman
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and the dates indicated below:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
*Jay L. Schottenstein Chairman and Chief Executive December 11, 1998
- -------------------------------- Officer (Principal Executive Officer)
Jay L. Schottenstein
*Saul Schottenstein Vice Chairman and Director December 11, 1998
- --------------------------------
Saul Schottenstein
/s/George Kolber Vice Chairman, Chief Operating December 11, 1998
- -------------------------------- Officer and Director
George Kolber
</TABLE>
II-4
<PAGE> 10
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
*Laura A. Weil Executive Vice President and Chief December 11, 1998
- -------------------------------- Financial Officer (Principal Financial
Laura A. Weil Officer)
*Dale E. Clifton Vice President, Controller and Chief December 11, 1998
- -------------------------------- Accounting Officer
Dale E. Clifton
*Martin P. Doolan Director December 11, 1998
- --------------------------------
Martin P. Doolan
*Thomas R. Ketteler Director December 11, 1998
- --------------------------------
Thomas R. Ketteler
*David W. Thompson Director December 11, 1998
- --------------------------------
David W. Thompson
*John L. Marakas Director December 11, 1998
- --------------------------------
John L. Marakas
*Gilbert W. Harrison Director December 11, 1998
- --------------------------------
Gilbert W. Harrison
*Ari Deshe Director December 11, 1998
- --------------------------------
Ari Deshe
*Jon P. Diamond Director December 11, 1998
- --------------------------------
Jon P. Diamond
*Michael G. Jesselson Director December 11, 1998
- --------------------------------
Michael G. Jesselson
*Gerald E. Wedren Director December 11, 1998
- --------------------------------
Gerald E. Wedren
*By: /s/George Kolber
--------------------------------
George Kolber, Attorney-in-fact
for each person indicated
</TABLE>
II-5
<PAGE> 1
Exhibit 5
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street
Columbus, Ohio 43215
(614) 227-2096
December 14, 1998
American Eagle Outfitters, Inc.
150 Thorn Hill Drive
Warrendale, Pennsylvania 15086
Ladies and Gentlemen:
With respect to the Registration Statement on Form S-3 (the
"Registration Statement") being filed by American Eagle Outfitters, Inc. (the
"Company") under the Securities Act of 1933, as amended, relating to the
registration of 500,000 common shares of the Company, without par value (the
"Shares"), we advise you as follows:
We are counsel for the Company and have participated in the preparation
of the Registration Statement. We have reviewed the Company's Certificate of
Incorporation, as amended to date, the corporate action taken to date in
connection with the Registration Statement and the issuance and sale of the
Shares, and such other documents and authorities as we deem relevant for the
purpose of this opinion.
Based upon the foregoing, we are of the opinion that, upon compliance
with the Securities Act of 1933, as amended, and with the securities or "blue
sky" laws of the states in which the Shares are to be offered for sale, the
Shares will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the prospectus included in the Registration Statement.
Very truly yours,
/s/ Porter, Wright, Morris & Arthur
PORTER, WRIGHT, MORRIS & ARTHUR
<PAGE> 1
Exhibit 23(b)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus for the registration of
500,000 shares of American Eagle Outfitters, Inc.'s common stock and to the
incorporation by reference therein of our report dated March 3, 1998 (except for
Note 13, as to which the date is April 14, 1998) with respect to the
consolidated financial statements of American Eagle Outfitters, Inc. included in
its Annual Report (Form 10-K) for the year ended January 31, 1998 filed with the
Securities and Exchange Commission.
We are also aware of the incorporation by reference in the Registration
Statement (Form S-3) and related Prospectus of our reports dated May 20, 1998,
August 19, 1998, and November 17, 1998 related to the unaudited condensed
consolidated interim financial statements of American Eagle Outfitters, Inc.
which are included in the Forms 10-Q for the quarters ended May 2, 1998, August
1, 1998 and October 31, 1998.
Pursuant to Rule 436(c) of the Securities Act of 1933 our reports are not a part
of the registration statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ Ernst & Young LLP
Pittsburgh, Pennsylvania
December 9, 1998
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
Each of the undersigned officers and/or directors of American Eagle
Outfitters, Inc., a Delaware corporation (the "Company"), hereby appoints George
Kolber, Laura A. Weil and William P. Tait, or any one of them, as his true and
lawful attorney-in-fact, in his name and on his behalf, and in any and all
capacities stated below, to sign and to cause to be filed with the Securities
and Exchange Commission the Company's Registration Statement on Form S-3 (the
"Registration Statement") to register under the Securities Act of 1933, as
amended, the sale by certain shareholders of the Company of up to 500,000 shares
of common stock of the Company and any and all amendments, including
post-effective amendments, to the Registration Statement, hereby granting unto
such attorney-in-fact, full power and authority to do and perform in the name
and on behalf of the undersigned, in any and all such capacities, every act and
thing whatsoever necessary to be done in and about the premises as fully as the
undersigned could or might do in person, hereby granting to such
attorney-in-fact full power of substitution and revocation, and hereby ratifying
all that any such attorney-in-fact or his substitute may do by virtue hereof.
IN WITNESS WHEREOF, the undersigned have signed these presents
effective November 18, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C> <C>
/s/Jay L. Schottenstein Chairman of the Board and Chief Executive Officer
------------------------------------- (Principal Executive Officer)
Jay L. Schottenstein
/s/Saul Schottenstein Vice Chairman of the Board and Director
-------------------------------------
Saul Schottenstein
/s/George Kolber Vice Chairman of the Board of Directors,
------------------------------------- Chief Operating Officer and Director
George Kolber
/s/Dale E. Clifton Vice President, Controller, and Chief Accounting Officer
------------------------------------- (Principal Accounting Officer)
Dale E. Clifton
/s/Laura A. Weil Executive Vice President and Chief Financial Officer
------------------------------------- (Principal Financial Officer)
Laura A. Weil
/s/Martin P. Doolan Director
-------------------------------------
Martin P. Doolan
/s/Thomas R. Ketteler Director
-------------------------------------
Thomas R. Ketteler
/s/John L. Marakas Director
-------------------------------------
John L. Marakas
/s/David W. Thompson Director
-------------------------------------
David W. Thompson
/s/Gilbert W. Harrison Director
-------------------------------------
Gilbert W. Harrison
/s/Ari Deshe Director
-------------------------------------
Ari Deshe
</TABLE>
<PAGE> 2
<TABLE>
<S> <C> <C>
/s/Jon P. Diamond Director
-------------------------------------
Jon P. Diamond
/s/Michael G. Jesselson Director
-------------------------------------
Michael G. Jesselson
/s/Gerald E. Wedren Director
-------------------------------------
Gerald E. Wedren
</TABLE>
<PAGE> 1
Exhibit 99
AMERICAN EAGLE OUTFITTERS, INC.
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement") is made and entered into
as of December 4, 1998, by and among AMERICAN EAGLE OUTFITTERS, INC., an Ohio
corporation (the "Company"), and Hubert Guez, Trustee of the Guez Living Trust
U/D/T December 6, 1996 (the "Trust") and Paul Guez, holders of the Company's
common stock, without par value (collectively the "Shareholders").
RECITALS
--------
WHEREAS, in February of 1995, S.H.D. Investments, LLC, a California
limited liability company ("SHD"), purchased 2,250,000 shares (the "Shares") of
the Company's common stock from Sam Forman, a former president of the Company,
after taking into account the two 3-for-2 stock splits of the Company's common
stock.
WHEREAS, the Shareholders are members of SHD.
WHEREAS, the Shares purchased form Mr. Forman by SHD were restricted
shares.
WHEREAS, in December 1998, SHD redeemed a portion of the interests in
SHD held by the Shareholders and as a result distributed 250,000 Shares to Paul
Guez and 250,000 Shares to the Trust (the "Registrable Securities").
WHEREAS, the Company has agreed to register the Registrable Securities
in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions contained herein, the parties
hereto hereby agree as follows:
AGREEMENT
---------
Section 1. CERTAIN DEFINITIONS. As used in this Agreement, the
following terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Registrable Securities" means the Shares owned by Paul Guez and the
Trust as a result of the distribution by SHD in December 1998.
The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing with the Commission a registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement.
"Registration Expenses" shall mean all reasonable expenses, except
Selling Expenses as defined below, incurred by the Company in complying with a
registration under Sections 5 or 6 hereof, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel and accountants for the Company, blue sky fees
and expenses, and the expense of any special audits incident to or required by
any such registration.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Shareholders and all fees and disbursements of counsel for any Shareholder.
Section 2. SHELF REGISTRATION. The Company hereby agrees to effect a
registration under the Securities Act on Form S-3 for a public offering of the
Registrable Securities. At the expense of the Shareholders, the Company will:
(a) Prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for six (6) months, and prepare and
file with the Commission such amendments to such registration statement and
supplements to the prospectus contained therein as may be necessary to keep such
registration statement effective for six (6) months;
<PAGE> 2
(b) Furnish to the Shareholders such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such other
documents as such Shareholders may reasonably request in order to facilitate the
public offering of such securities;
(c) Use its best efforts to register or qualify the securities covered
by such registration statement under such state securities or blue sky laws of
such jurisdictions as such Shareholders may reasonably request within ten (10)
days prior to the original filing of such registration statement, except that
the Company shall not for any purpose be required to execute a general consent
to service of process or to qualify to do business as a foreign corporation in
any jurisdiction where it is not so qualified;
(d) Notify the Shareholders promptly after it shall receive notice
thereof, of the time when such registration statement has become effective or a
supplement to any prospectus forming a part of such registration statement has
been filed;
(e) Notify the Shareholders promptly of any request by the Commission
to amend or supplement such registration statement or prospectus or for
additional information;
(f) Prepare and file with the Commission promptly upon the request of
any such Shareholders, any amendments or supplements to such registration
statement or prospectus which, in the reasonable opinion of counsel for such
Shareholders, is required under the Securities Act or the rules and regulations
thereunder in connection with the distribution of the Registrable Securities by
such Shareholders;
(g) Prepare and promptly file with the Commission, and promptly notify
such Shareholders of the filing of, such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event has
occurred as the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading
in light of the circumstances in which they were made; and
(h) Advise such Shareholders promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
Section 3. RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Agreement at any time in its sole discretion whether prior to or after the
effectiveness of such registration. Any such termination or withdrawal will not
relieve the Shareholders of their obligation to pay expenses and provide
indemnification hereunder.
Section 4. EXPENSES OF REGISTRATION. All Registration Expenses incurred
in connection with all registrations pursuant to Section 2 shall be borne by the
Shareholders and shall be paid by the Shareholders to the Company in cash in
advance on demand, subject to verification of actual expenses by the Company for
advance payments. All Selling Expenses relating to securities registered on
behalf of the Shareholders shall be borne by the Shareholders.
Section 5. INFORMATION BY SHAREHOLDERS. The Shareholders shall furnish
the Company such information regarding such Shareholders, the Registrable
Securities held by them and the distribution proposed by such Shareholders as
the Company may request in writing and as shall be required in connection with
any registration referred to in this Agreement.
Section 6. INDEMNIFICATION.
(a) The Shareholders will jointly and severally indemnify the Company,
each of its directors and officers, and each person who controls the Company
against all claims, losses, damages and liabilities (or actions in respect
thereof), arising out of or based on any action or omission by the Company
pursuant to or as a result of this Agreement, including without limitation, any
mistake or negligent act on the part of the Company or its agents, and will
reimburse the Company, such directors, officers, persons, or control persons for
any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action.
(b) If the Company becomes entitled to indemnification under this
Section 6, it shall give notice to the Shareholders promptly after it has actual
knowledge of any claim as to which indemnity may be sought, and shall permit the
Shareholders to assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Shareholders, who shall conduct the
defense of such claim or litigation, shall be approved by the Company (whose
approval shall not unreasonably be withheld), and the Company may participate in
such defense at its own expense, and provided further that the failure of the
Company to give notice as provided herein shall not relieve the Shareholders of
their obligations under this Agreement unless the failure to give such notice is
materially prejudicial to the Shareholder's ability to defend such action and
provided further, that the Shareholders shall not
<PAGE> 3
assume the defense for matters as to which there is a conflict of interest or
separate and different defenses. The Shareholders, in the defense of any such
claim or litigation, shall not, except with the consent of the Company, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to the
Company of a release from all liability in respect to such claim or litigation.
Section 7. NON-ASSIGNABILITY OF AGREEMENT. The rights granted by this
Agreement to the Shareholders may not be transferred except by will or the laws
of descent or distribution.
Section 8. EXECUTION IN COUNTERPARTS. For the convenience of the
parties, this Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Section 9. NOTICES. All notices that are required or may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and delivered by hand or national
overnight courier service, transmitted by telecopy or mailed by registered or
certified mail, postage prepaid, and shall be deemed given upon receipt, as
follows:
If to the Company to:
American Eagle Outfitters
150 Thorn Hill Drive
Warrendale, PA 15086-7528
(724) 776-4857:
Attention: Jay L. Schottenstein, Chairman of the Board
With a copy to:
Neil Bulman, Jr.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215
If to the Shareholders to:
The address appearing on the books and records of
the Company or its transfer agent as the address of
the Shareholders
With a copy to:
Stephen D. Cooke, Esq.
Paul, Hastings, Janofsky & Walker LLP
695 Town Center Drive
Costa Mesa, California 92626-1924
or such other address or addresses as any party hereto shall have designated by
notice in writing to the other parties hereto.
Section 10. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with he laws of the State of Ohio, without regard to its
conflict of laws principles.
Section 11. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes any and all prior agreements and understandings, oral and written,
with respect to the subject matter hereof.
<PAGE> 4
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written.
AMERICAN EAGLE OUTFITTERS, INC. SHAREHOLDERS
By: /s/Jay L. Schottenstein /s/Paul Guez
------------------------------------- --------------------------------
Jay L. Schottenstein, Chairman Paul Guez
The Guez Family Trust
U/D/T December 6, 1996
By:/s/Hubert Guez
-----------------------------
Hubert Guez, Co-Trustee
