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As filed with the Securities and Exchange Commission on April 8, 1999
Registration No. 333-68875
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------
AMERICAN EAGLE OUTFITTERS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 13-2721430
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
150 Thorn Hill Drive
Warrendale, Pennsylvania 15086
(Address of Registrant's principal executive offices)
Dale E. Clifton
Vice President, Controller, and Chief Accounting Officer
American Eagle Outfitters, Inc.
150 Thorn Hill Drive
Warrendale, Pennsylvania 15086
(724) 776-4857
(Name, address and telephone number of agent for service)
--------------------------
Copies of Correspondence to:
Neil Bulman, Jr., Esq.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215
(614) 227-2219
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POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3
This Post-Effective Amendment No. 1 (this "Amendment") is being filed
pursuant to Rule 414 under the Securities Act of 1933, as amended (the
"Securities Act") by American Eagle Outfitters, Inc., f/k/a Natco Industries,
Inc., a Delaware corporation ("New American Eagle" or the "Corporation"), which
is the successor to American Eagle Outfitters, Inc., a Delaware corporation
("American Eagle"), following a statutory merger effective April 7, 1999 (the
"Merger") for the purpose of reorganizing American Eagle's organizational
structure. Immediately prior to the Merger, New American Eagle's only asset was
its 6,991,174 shares of American Eagle common stock. In connection with the
Merger, New American Eagle succeeded by operation of law to all of the assets
and liabilities of American Eagle, which becam its wholly-owned subsidiary. The
Merger was approved by the shareholders of American Eagle at a meeting for which
proxies were solicited pursuant to Section 14(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
In accordance with Rule 414 under the Securities Act, New American
Eagle, as successor issuer to American Eagle, hereby expressly adopts this
registration statement as its own for all purposes of the Securities Act and the
Exchange Act.
The applicable registration fees were paid at the time of the original
filing of this registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Article Seventh of New American Eagle's Certificate of
Incorporation provides that New 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 New
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 claimant and is reasonably necessary to determine
and to what extent the claimant is entitled to indemnification. In the event the
determination
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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, New American Eagle may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, or agent of New American
Eagle, or who, while serving in such capacity, is or was at the request of New
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 New American Eagle would have the power to
provide indemnity under Section 145 or the By-Laws. New American Eagle has
obtained insurance which, subject to certain exceptions, insures the directors
and officers of New American Eagle and its subsidiaries.
(d) New American Eagle has succeeded to indemnification contracts
entered into by American Eagle 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 New American Eagle, by reason of the
fact that they were a director, officer, employee or agent of New American
Eagle, or were serving at the request of New 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 pursuant to
any directors and officers liability insurance purchased and maintained by New
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
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made from the purchase or sale by indemnitee of securities of New 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 New American Eagle's Certificate of
Incorporation provides that a director of New 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 New 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 New 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 8. EXHIBITS
Exhibit Number Description
- -------------- -----------
5 * Opinion of Porter, Wright, Morris & Arthur regarding
legality.
15 * Acknowledgment Letter of Ernst & Young LLP.
23(a) Consent of Porter, Wright Morris & Arthur (included in
Exhibit 5 filed herein).
23(b) * Consent of Ernst & Young LLP.
24 Powers of Attorney. (Reference is made to Exhibit 24
to Post-Effective Amendment No. 2 to Form S-8, as
amended, (Registration No. 333-44759), filed with the
Securities and Exchange Commission on April 8, 1999,
and incorporated herein by reference).
- -------------------
* Filed with this Registration Statement
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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
Post-Effective Amendment No. 1 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Columbus, State of Ohio, on April 8,
1999.
AMERICAN EAGLE OUTFITTERS, INC.,
a Delaware corporation,
By: /s/ George Kolber
--------------------------------
George Kolber, Vice Chairman and
Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
*Jay L. Schottenstein Chairman of the Board of Directors and ) April 8, 1999
- ------------------------------- Chief Executive Officer )
Jay L. Schottenstein (Principal Executive Officer) )
)
)
*Saul Schottenstein Vice Chairman of the Board of Directors ) April 8, 1999
- ------------------------------- )
Saul Schottenstein )
)
)
/s/ George Kolber Vice Chairman of the Board of Directors ) April 8, 1999
- ------------------------------- and Chief Operating Officer )
George Kolber )
)
)
*Dale E. Clifton Vice President, Controller, and ) April 8, 1999
- ------------------------------- Chief Accounting Officer )
Dale E. Clifton (Principal Accounting Officer) )
)
)
*Laura A. Weil Executive Vice President and Chief ) April 8, 1999
- ------------------------------- Financial Officer (Principal Financial )
Laura A. Weil Officer) )
)
)
*Martin P. Doolan Director ) April 8, 1999
- ------------------------------- )
Martin P. Doolan )
)
)
*Thomas R. Ketteler Director ) April 8, 1999
- ------------------------------- )
Thomas R. Ketteler )
)
)
*John L. Marakas Director ) April 8, 1999
- ------------------------------- )
John L. Marakas )
</TABLE>
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<TABLE>
<S> <C> <C>
*David W. Thompson Director ) April 8, 1999
- ------------------------------- )
David W. Thompson )
)
)
*Gilbert W. Harrison Director ) April 8, 1999
- ------------------------------- )
Gilbert W. Harrison )
)
)
*Ari Deshe Director ) April 8, 1999
- ------------------------------- )
Ari Deshe )
)
)
*Jon P. Diamond Director ) April 8, 1999
- ------------------------------- )
Jon P. Diamond )
)
)
*Michael G. Jesselson Director ) April 8, 1999
- ------------------------------- )
Michael G. Jesselson )
)
)
*Gerald E. Wedren Director ) April 8, 1999
- ------------------------------- )
Gerald E. Wedren )
)
)
*Roger S. Markfield Director ) April 8, 1999
- ------------------------------- )
Roger S. Markfield )
*By: /s/ George Kolber
------------------------------------
George Kolber, attorney-in-fact
for each of the persons indicated
</TABLE>
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Registration No. 333-68875
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO FORM S-3 REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
AMERICAN EAGLE OUTFITTERS, INC.
----------
EXHIBITS
----------
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EXHIBIT INDEX
Exhibit Exhibit
Number Description
- ------- -----------
5 * Opinion of Porter, Wright, Morris & Arthur regarding
legality.
15 * Acknowlegement Letter of Ernst & Young LLP.
23(a) Consent of Porter, Wright Morris & Arthur (included in
Exhibit 5 filed herein).
23(b) * Consent of Ernst & Young LLP.
24 Powers of Attorney. (Reference is made to Exhibit 24 to
Post-Effective Amendment No. 2 to Form S-8, as amended,
(Registration No. 333-44759), filed with the Securities and
Exchange Commission on April 8, 1999, and incorporated
herein by reference).
- -------------------
* Filed with this Registration Statement
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Exhibit 5
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street
Columbus, Ohio 43215
(614) 227-2096
April 8, 1999
American Eagle Outfitters, Inc.
150 Thorn Hill Drive
Warrendale, Pennsylvania 15086
Re: Post-Effective Amendment No. 1 to Registration Statement on
Form S-3 of American Eagle Outfitters, Inc.
Ladies and Gentlemen:
We have acted as counsel for American Eagle Outfitters, Inc. (f/k/a
Natco Industries, Inc.), a Delaware corporation ("New American Eagle"), in
connection with the preparation of Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3 (Registration No. 333-68875) (the
"Registration Statement"), filed by New American Eagle with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"),
with respect to the adoption of the Registration Statement on Form S-3 by New
American Eagle, pursuant to Rule 414 of the Act, as a successor issuer of
American Eagle Outfitters, Inc., a Delaware corporation.
In connection with this opinion, we have examined such corporate
records, documents and other instruments of New American Eagle as we have deemed
necessary.
Based on the foregoing, we are of the opinion that the shares issued
under the Registration Statement on Form S-3 will, when issued and paid for in
accordance with its provisions, be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Porter, Wright, Morris & Arthur
PORTER, WRIGHT, MORRIS & ARTHUR
<PAGE> 1
Exhibit 15
Acknowledgment Letter
The Board of Directors and
Shareholders of America Eagle Outfitters, Inc.
We are aware of the incorporation by reference in the Registration Statement
(Form S-3, No. 333-68875) 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
April 5, 1999
<PAGE> 1
Exhibit 23(b)
Consent of Independent Auditors
We consent to the incorporation by reference in the Post-Effective Amendment to
the Registration Statement (Form S-3, No. 333-68875) and related Prospectus for
the registration of 500,000 shares of American Eagle Outfitters, Inc.'s common
stock 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.
/s/ Ernst & Young LLP
Pittsburgh, Pennsylvania
April 5, 1999
