<PAGE> 1
As filed with the Securities and Exchange Commission
on November 12, 1996
Registration No. __________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
- --------------------------------------------------------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ABERCROMBIE & FITCH CO.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware
- --------------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
31-1469076
-----------------------------------
(I.R.S. Employer Identification No.)
Four Limited Parkway, Reynoldsburg, Ohio 43230
---------------------------------------- -----------
(Address of principal executive offices) (Zip Code)
ABERCROMBIE & FITCH
1996 STOCK OPTION AND PERFORMANCE INCENTIVE PLAN
------------------------------------------------
(Full title of the plan)
SAMUEL P. FRIED
Vice President, General Counsel and Secretary
Abercrombie & Fitch Co.
Four Limited Parkway
Reynoldsburg, Ohio 43068
(614) 577-6500
- --------------------------------------------------------------------------------
(Name, address and telephone number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================
Proposed Proposed
Title of Securities Amount to be Maximum Maximum Amount of
to be Registered Registered Offering Price per Aggregate Offering Registration Fee
Share* Price*
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$0.01 par value 3,500,000 shares $22.5625 $78,968,750 $23,929.92
=======================================================================================================
</TABLE>
* Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(h) under the Securities Act of 1933, as amended, based upon the
average of the high and low prices reported in the New York Stock Exchange
consolidated reporting system as of November 6, 1996.
<PAGE> 2
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
----------------------------------------------
Item 3. Incorporation of Documents By Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents:
(a) Prospectus contained in the Registrant's Amendment No. 2 to
Registration Statement on Form S-1 (Reg. No. 333-8231), filed by the Registrant
with the Securities and Exchange Commission (the "Commission") on August 28,
1996.
(b) All reports, if any, filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
since October 1, 1996.
(c) The description of the Registrant's Class A Common Stock, $.01 par
value, set forth in the Registrant's Amendment No. 2 to Registration Statement
on Form S-1, filed with the Commission on August 28, 1996 ("Common Stock").
All documents filed by the Registrant with the Commission after the
date of this Registration Statement under Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act, and before the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, will be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides for
indemnification of directors and officers against any legal liability (other
than liability arising from derivative suits) if the officer or director acted
in good faith and in a manner that he reasonably believed to be in or not
opposed to the best interests of the corporation. In criminal actions, the
officer or director must also have had no reasonable cause to believe that his
conduct was unlawful. A corporation may indemnify an officer or director in a
derivative suit if the officer or director acted in good faith and in a manner
that he reasonably believed to be in or not opposed to the best interest of the
corporation unless the officer or director is found liable to the corporation.
However, if the Court of Chancery or the court in which such action or suit was
brought determines that the officer or director is fairly and reasonably
entitled to indemnity, then the Court of Chancery or such other court may
permit indemnity for such officer or director to the extent it deems proper.
2
<PAGE> 3
The Registrant's Bylaws provide generally that the Registrant shall
indemnify its present and past directors and officers to the fullest extent
permitted by the laws of Delaware as they may exist from time to time.
Directors and officers of the Registrant and its subsidiaries are indemnified
generally against expenses actually and reasonably incurred in connection with
proceedings, whether civil or criminal. The Registrant's Bylaws also provide
that indemnification thereunder is not exclusive, and the Registrant may agree
to indemnify any person as provided therein. The Registrant is a party to
indemnification agreements with its directors and officers. The agreements
provide that the Registrant will indemnify such directors and officers to the
fullest extent permitted by applicable law, and require the Registrant to
maintain directors' and officers' liability insurance at the level in effect
when the relevant indemnification agreement was executed and to advance
expenses upon the request of an officer or director.
The Registrant's Certificate of Incorporation provides that directors
of the Registrant shall not be held personally liable to the Registrant or its
stockholders for monetary damages arising from certain breaches of their
fiduciary duties. The provision does not insulate directors from personal
liability for (i) breaches of their duty of loyalty to the Registrant or its
stockholders, (ii) acts or omissions not taken in good faith or that involve
intentional misconduct or knowing violation of law, (iii) transactions in which
the director derives any improper personal benefit or (iv) unlawfully voting to
pay dividends or to repurchase or redeem stock.
The Registrant maintains insurance policies providing for
indemnification of directors and officers and for reimbursement to the
Registrant for monies which it may pay as indemnity to any director or officer,
subject to the conditions and exclusions of the policies and specified
deductible provisions.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See Exhibit Index on page 6
Item 9. Undertakings.
(a) Rule 415 Offering.
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 (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;
3
<PAGE> 4
(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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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.
(b) Filings Incorporating Subsequent Exchange Act Documents by Reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report under Section 13(a) or 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
under Section 15(d) of the Exchange Act) 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.
(h) Filing of Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under 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.
4
<PAGE> 5
SIGNATURES
The Registrant.
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Reynoldsburg, State of Ohio, on November 7, 1996.
ABERCROMBIE & FITCH CO.
(The Registrant)
By /s/ Kenneth B. Gilman
-----------------------
Kenneth B. Gilman,
Vice Chairman
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on November 7, 1996.
Signature Title
- --------- -----
* Chairman of the Board
- ----------------------
Leslie H. Wexner
/s/ Kenneth B. Gilman Vice Chairman of the Board
- ----------------------
Kenneth B. Gilman
* President, Chief Executive
- ---------------------- Officer and Director
Michael S. Jeffries (principal executive officer)
* Vice President-Chief Financial Officer
- ---------------------- (principal financial and
Seth R. Johnson accounting officer)
* Director
- ----------------------
E. Gordon Gee
* Director
- ----------------------
Donald B. Shackelford
* Director
- ----------------------
Roger D. Blackwell
*Kenneth B. Gilman, by signing his name hereto, signs this document on
behalf of the persons indicated above pursuant to powers of attorney duly
executed by such persons.
By /s/ Kenneth B. Gilman
-------------------------
Kenneth B. Gilman,
Attorney-in-Fact
5
<PAGE> 6
EXHIBIT INDEX
The following exhibits are filed as part of this Registration Statement:
Exhibit
4.1 Form of Amended and Restated Certificate of Incorporation of the
Registrant incorporated by reference to Exhibit 3.1 of the
Registrant's Amendment No. 2 to Registration Statement on Form S-1
(Reg. No. 33-8231), filed by the Registrant with the Securities and
Exchange Commission on August 28, 1996.
4.2 Form of Bylaws of the Registrant incorporated by reference to
Exhibit 3.1 of the Registrant's Amendment No. 2 to Registration
Statement on Form S-1 (Reg. No. 333-8231), filed by the Registrant
with the Securities and Exchange Commission on August 28, 1996.
4.3 Copy of the Abercrombie & Fitch Co. 1996 Stock Option and
Performance Incentive Plan.
5.1 Legal opinion of Samuel P. Fried, Esq., Vice President, General
Counsel and Secretary of the Registrant.
23.1 Consent of Coopers & Lybrand L.L.P..
23.2 Consent of Samuel Fried, Vice President, General Counsel and
Secretary of the Registrant (included in the opinion filed as
Exhibit 5.1).
24 Powers of Attorney.
6
<PAGE> 1
Exhibit 4.3
ABERCROMBIE & FITCH CO.
1996 STOCK OPTION AND PERFORMANCE INCENTIVE PLAN
<PAGE> 2
ABERCROMBIE & FITCH CO.
1996 STOCK OPTION AND PERFORMANCE INCENTIVE PLAN
TABLE OF CONTENTS
Page
ARTICLE 1
ESTABLISHMENT AND PURPOSE
1.1 Establishment and Effective Date ................. 6
1.2 Purpose .......................................... 6
ARTICLE 2
AWARDS
2.1 Form of Awards................................... 6
2.2 Maximum Shares Available ........................ 7
2.3 Return of Prior Awards........................... 7
ARTICLE 3
ADMINISTRATION
3.1 Committee ....................................... 7
3.2 Powers of Committee ............................. 7
3.3 Delegation ...................................... 8
3.4 Interpretations.................................. 8
3.5. Liability; Indemnification ...................... 8
ARTICLE 4
ELIGIBILITY
2
<PAGE> 3
ARTICLE 5
STOCK OPTIONS
5.1 Grant of Options ................................ 9
5.2 Option Price .................................... 9
5.3 Term of Options ................................. 9
5.4 Exercise of Options ............................. 9
5.5 Cancellation of Stock Appreciation Rights ....... 10
ARTICLE 6
SPECIAL RULES APPLICABLE TO INCENTIVE STOCK OPTIONS
6.1 Ten Percent Stockholder ......................... 10
6.2 Limitation on Grants ............................ 10
6.3 Limitations of Time of Grants ................... 10
ARTICLE 7
STOCK APPRECIATION RIGHTS
7.1 Grants of Stock Appreciation Rights .............. 11
7.2 Limitations of Exercise .......................... 11
7.3 Surrender or Exchange of Tandem Stock
Appreciation Rights............................ 11
7.4 Exercise of Nontandem Stock Appreciation Rights .. 11
7.5 Settlement of Stock Appreciation Rights .......... 12
7.6 Cash Settlement .................................. 12
ARTICLE 8
NONTRANSFERABILITY OF OPTIONS AND STOCK APPRECIATION RIGHTS
ARTICLE 9
TERMINATION OF EMPLOYMENT
9.1 Exercise after Termination of Employment ......... 13
9.2 Total Disability ................................. 13
3
<PAGE> 4
ARTICLE 10
DEATH OF ASSOCIATE
ARTICLE 11
RESTRICTED SHARES
11.1 Grant of Restricted Shares ...................... 13
11.2 Restrictions .................................... 14
11.3 Restricted Stock Certificates ................... 14
11.4 Rights of Holders of Restricted Shares .......... 14
11.5 Forfeiture ...................................... 14
11.6 Delivery of Restricted Shares ................... 14
11.7 Performance-Based Objectives .................... 15
ARTICLE 12
PERFORMANCE SHARES
12.1 Award of Performance Shares .................... 15
12.2 Performance Period ............................. 15
12.3 Right to Payment of Performance Shares ......... 15
12.4 Payment for Performance Shares ................. 16
12.5 Voting and Divident Rights ..................... 16
ARTICLE 13
PERFORMANCE UNITS
13.1 Award of Performance Units ..................... 16
13.2 Right to Payment of Performance Units .......... 17
13.3 Payment for Performance Units .................... 17
ARTICLE 14
UNRESTRICTED SHARES
14.1 Award of Unrestricted Shares ..................... 18
14.2 Delivery of Unrestricted Shares .................. 18
4
<PAGE> 5
ARTICLE 15
TAX OFFSET PAYMENTS
ARTICLE 16
ADJUSTMENT UPON CHANGES IN CAPITALIZATION
ARTICLE 17
AMENDMENT AND TERMINATION
ARTICLE 18
WRITTEN AGREEMENT
ARTICLE 19
MISCELLANEOUS PROVISIONS
19.1 Fair Market Value ................................. 20
19.2 Tax Withholding ................................... 20
19.3 Compliance With Section 16(b) and Section 162(m) .. 20
19.4 Successors ........................................ 21
19.5 General Creditor Status ........................... 21
19.6 No Right to Employment ............................ 21
19.7 Notices ........................................... 21
19.8 Severability ...................................... 21
19.9 Governing Law ..................................... 21
19.10 Term of Plan ...................................... 22
5
<PAGE> 6
ABERCROMBIE & FITCH CO.
1996 STOCK OPTION AND PERFORMANCE INCENTIVE PIAN
ARTICLE 1
ESTABLISHMENT AND PURPOSE
1.1 ESTABLISHMENT AND EFFECTIVE DATE. Abercrombie & Fitch, a Delaware
corporation (the "Company"), hereby establishes a stock incentive plan to be
known as the "Abercrombie & Fitch 1996 Stock Option and Performance Incentive
Plan" (the "Plan"). The Plan shall become effective on the effective date of
the initial public offering of the Company's Class A Common Stock, par value
$.01 per share ("Common Stock"), subject to the consummation of such initial
public offering. Upon approval of the Plan by the Board of Directors of the
Company (the "Board"), awards may be made as provided herein, subject to such
consummation. In the event that such public offering is not consummated, any
such awards shall be cancelled and all rights of associates with respect to such
awards shall thereupon cease.
1.2 PURPOSE. The Company desires to attract and retain the best
available executive and key management associates for itself and its
subsidiaries and to encourage the highest level of performance by such
associates in order to serve the best interests of the Company and its
stockholders. The Plan is expected to contribute to the attainment of these
objectives by offering eligible associates the opportunity to acquire stock
ownership interests in the Company, and other rights with respect to stock of
the Company, and to thereby provide them with incentives to put forth maximum
efforts for the success of the Company and its subsidiaries.
ARTICLE 2
AWARDS
2.1 FORM OF AWARDS. Awards under the Plan may be granted in any one
or all of the following forms: (i) incentive stock options ("Incentive Stock
Options") meeting the requirements of Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code"); (ii) nonstatutory stock options
("Nonstatutory Stock Options") (unless otherwise indicated, references in the
Plan to Options shall include both Incentive Stock Options and Nonstatutory
Stock Options); (iii) stock appreciation rights ("Stock Appreciation Rights"),
as described in Article 7, which may be awarded either in tandem with Options
("Tandem Stock Appreciation Rights") or on a stand-alone basis ("Nontandem
Stock Appreciation Rights"); (iv) shares of Common Stock which are restricted
as provided in Article 11 ("Restricted Shares"); (v) units representing shares
of Common Stock, as described in Article 12 ("Performance Shares"); (vi) units
which do not represent shares of Common Stock
6
<PAGE> 7
but which may be paid in the form of Common Stock, as described in Article
13 ("Performance Units"); (vii) shares of unrestricted Common Stock
("Unrestricted Shares") and (viii) tax offset payments ("Tax Offset Payments"),
as described in Article 15.
2.2 MINIMUM SHARES AVAILABLE. The maximum aggregate number of shares
of Common Stock available for award under the Plan, including shares of Common
Stock awarded as Tax Offset Payments, is 3,500,000 subject to adjustment
pursuant to Article 16. Shares of Common Stock issued pursuant to the Plan may
be either authorized but unissued shares or issued shares reacquired by the
Company. In the event that prior to the end of the period during which Options
may be granted under the Plan, any Option or any Nontandem Stock Appreciation
Right under the Plan expires unexercised or is terminated, surrendered or
cancelled (other than in connection with the exercise of a Stock Appreciation
Right) without being exercised in whole or in part for any reason, or any
Restricted Shares, Performance Shares or Performance Units are forfeited, or if
such awards are settled in cash in lieu of shares of Common Stock, then such
shares or units may, at the discretion of the Committee to the extent
permissible under Rule 16b-3 under the Security Enchange Act of 1934 (the
"Act"), be made available for subsequent awards under the Plan, upon such terms
as the Committee may determine.
2.3 RETURN OF PRIOR AWARDS. As a condition to any subsequent award, the
Committe shall have the right, at its discretion, to require associates to
return to the Company awards previously granted under this Plan. Subject to the
provisions of this Plan, such new award shall be upon such terms and conditions
as are specified by the Committee at the time the new award is granted to the
extent permitted by Rule 16b-3 under the Act.
ARTICLE 3
ADMINISTRATION
3.1 COMMITTEE. The Plan shall be administered by a Committee (the
"Committee") appointed by the Board and consisting of not less than two (2)
members of the Board. Each member of the Committee shall be an "outside
director" (within the meaning of Section 162(m) of the Code) and a
"non-employee director" (within the meaning of Rule 16b-3(b)(3)(i) under the
Act).
3.2 POWERS OF COMMITTEE. Subject to the express provisions of the Plan,
the Committee shall have the power and authority (i) to grant Options and to
determine the purchase price of the Common Stock covered by each Option, the
term of each Option, the number of shares of Common Stock to be covered by each
Option and any performance objectives or vesting standards applicable to each
Option, (ii) to designate Options as Incentive Stock Options or Nonstatutory
Stock Options and to
7
<PAGE> 8
determine which Options, if any shall be accompanied by Tandem Stock
Appreciation Rights; (iii) to grant Tandem Stock Appreciation Rights and
Nontandem Stock Appreciation Rights and to determine the terms and
conditions of such rights; (iv) to grant Restricted Shares and to
determine the term of the restricted period and other conditions and
restrictions applicable to such shares; (v) to grant Performance Shares
and Performance Units and to determine the performance objectives,
performance periods and other conditions applicable to such shares or
units; (vi) to grant Unrestricted Shares; (vii) to determine the amount
of, and to make, Tax Offset Payments; and (viii) to determine the associates
to whom, and the time or times at which, Options, Stock Appreciation
Rights, Restricted Shares, Performance Shares, Performance Units and
Unrestricted Shares shall be granted.
3.3 DELEGATION. The Committee may delegate to one or more of its
members or to any other person or persons such ministerial duties as it may deem
advisable; provided, however, that the Committee may not delegate any of its
responsibilities hereunder if such delegation will cause (i) transactions under
the Plan to fail to comply with Section 16 of the Act or (ii) the Committee to
fail to qualify as "outside directors" under Section 162(m) of the Code. The
Committee may also employ attorneys, consultants, accounts or other
professional advisors and shall be entitled to rely upon the advice, opinions
or valuations of any such advisors.
3.4 INTERPRETATIONS. The Committee shall have sole discretionary
authority to interpret the terms of the Plan, to adopt and revise rules,
regulations and policies to administer the Plan and to make any other factual
determinations which it believes to be necessary or advisable for the
administration of the Plan. All actions taken and interpretations and
determinations made by the Committee in good faith shall be final and binding
upon the Company, all associates who have received awards under the Plan and
all other interested persons.
3.5 LIABILITY: INDEMNIFICATION. No member of the Committee, nor any
associate to whom ministerial duties have been delegated, shall be personally
liable for any action, interpretation or determination made with respect to the
Plan or awards made thereunder, and each member of the Committee shall be fully
indemnified and protected by the Company with respect to any liability he or
she may incur with respect to any such action, interpretation or determination,
to the extent permitted by applicable law and to the extent provided in the
Company's Certificate of Incorporation and Bylaws, as amended from time to
time.
8
<PAGE> 9
ARTICLE 4
ELIGIBILITY
Awards shall be limited to executive and key management associates who
are regular, full-time associates of the Company, its present and future
subsidiaries, its parent and subsidiaries thereof. In determining the
associates to whom awards shall be granted and the number of shares to be
covered by each award, the Committee shall take into account the nature of
the services rendered by such associates, their present and potential
contributions to the success of the Company and its subsidiaries and such
other factors as the Committee in its sole discretion shall deem relevant.
As used in this Plan, the term "subsidiary" shall mean any corporation
which at the time qualifies as a subsidiary of the Company under the
definition of "subsidiary corporation" set forth in Section 424(f) of the
Code, or any successor provision hereafter enacted. No associate may be
granted in any calendar year awards covering more than 400,000 shares of
Common Stock.
ARTICLE 5
STOCK OPTIONS
5.1 GRANT OF OPTIONS. Options may be granted under this Plan for the
purchase of shares of Common Stock. Options shall be granted in such form and
upon such terms and conditions, including the satisfaction of corporate or
individual performance objectives and other vesting standards, as the Committee
shall from time to time determine.
5.2 OPTION PRICE. The option price of each Option to purchase Common
Stock shall be determined by the Committee at the time of grant, but shall not
be less than 100 percent of the fair market value of the Common Stock subject to
such Option on the date of grant. The option price so determined shall also be
applicable in connection with the exercise of any Tandem Stock Appreciation
Right granted with respect to such option.
5.3 TERM OF OPTIONS. The term of each Nonstatutory Stock Option granted
under the Plan shall not exceed ten (10) years and one day from the date of
grant, subject to earlier termination as provided in Articles 9 and 10. Except
as otherwise provided in Section 6.1 with respect to ten (10) percent
stockholders of the Company, the term of each Incentive Stock Option shall not
exceed ten (10) years from the date of grant, subject to earlier termination as
provided in Articles 9 and 10.
5.4 EXERCISE OF OPTIONS. An Option may be exercised, in whole or in
part, at such time or times as the Committee shall determine. The Committee
may, in its discretion, accelerate the excercisability of any Option at any
time. Options may be
9
<PAGE> 10
exercised by an associate by giving written notice to the committee stating the
number of shares of Common Stock with respect to which the Option is being
exercised and tendering payment therefor. Payment for the Common Stock
issuable upon exercise of the Option shall be made in full in cash, or by
certified check or, if the Committee, in its sole discretion, permits, in
shares of Common Stock (valued at fair market value on the date of exercise).
As soon as reasonably practicable following such exercise, a certificate
representing the shares of Common Stock purchased, registered in the name of
the associate, shall be delivered to the associate. Notwithstanding the
foregoing, an associate may not exercise an Option prior to the consummation
of the initial public offering referred to in Section 1.1 hereof.
5.5 CANCELLATION OF STOCK APPRECIATION RIGHTS. Upon exercise of all or
a portion of an Option, the related Tandem Stock Appreciation Rights shall be
cancelled with respect to an equal number of shares of Common Stock.
ARTICLE 6
SPECIAL RULES APPLICABLE TO INCENTIVE STOCK OPTIONS
6.1 TEN PERCENT STOCKHOLDER. Notwithstanding any other provision of
this Plan to the contrary, no associate may receive an Incentive Stock Option
under the Plan if such associate, at the time the award is granted, owns (after
application of the rules contained in Section 424(d) for the Code) stock
possessing more than ten (10) percent of the total combined voting power of all
classes of stock of the Company or its subsidiaries, unless (i) the option
price for such Incentive Stock Option is at least 110 percent of the fair
market value of the Common Stock subject to such Incentive Stock Option on the
date of grant and (ii) such Option is not exercisable after the date five (5)
years from the date such Incentive Stock Option is granted.
6.2 LIMITATION ON GRANTS. The aggregate fair market value (determined
with respect to each Incentive Stock Option at the time such Incentive Stock
Option is granted) of the shares of Common Stock with respect to which Incentive
Stock Options are exercisable for the first time by an associate during any
calendar year (under this Plan or any other plan of the Company or a
subsidiary) shall not exceed $100,000.
6.3 LIMITATIONS ON TIME OF GRANTS. No grant of an Incentive Stock
Option shall be made under this Plan after the termination date set forth in
Section 19.10 hereof.
10
<PAGE> 11
ARTICLE 7
STOCK APPRECIATION RIGHTS
7.1 GRANTS OF STOCK APPRECIATION RIGHTS. Tandem Stock Appreciation
Rights may be awarded by the Committee in connection with any Option granted
under the Plan, either at the time the Option is granted or thereafter at any
time prior to the exercise, termination or expiration of the Option. Nontandem
Stock Appreciation Rights may also be granted by the Committee at any time. At
the time of grant of a Nontandem Stock Appreciation Right, the Committee shall
specify the number of shares of Common Stock covered by such right and the base
price of shares of Common Stock to be used in connection with the calculation
described in Section 7.4 below. The base price of a Nontandem Stock Appreciation
Right Shall be not less than 100 percent of the fair market value of a share of
Common Stock on the date of grant. Stock Appreciation Rights shall be subject to
such terms and conditions not inconsistent with the other provisions of this
Plan as the Committee shall determine.
7.2 LIMITATIONS ON EXERCISE. A Tandem Stock Appreciation Right shall be
exercisable only to the extent that the related Option is exercisable and shall
be exercisable only for such period as the Committee may determine (which
period may expire prior to the expiration date of the related Option). Upon the
exercise of all or a portion of Tandem Stock Appreciation Rights, the related
Option shall be cancelled with respect to an equal number of shares of Common
Stock. Shares of Common Stock subject to Options or portions thereof,
surrendered upon exercise of a Tandem Stock Appreciation Right, shall not be
available for subsequent awards under the Plan. A Nontandem Stock Appreciation
Right shall be exercisable during such period as the Committee shall determine.
7.3 SURRENDER OR EXCHANGE OF TANDEM STOCK APPRECIATION RIGHTS. A
Tandem Stock Appreciation Right shall entitle the associate to surrender to the
Company unexercised the related Option, or any portion thereof, and to receive
from the Company in exchange therefor that number of shares of Common Stock
having an aggregate fair market value equal to (A) the excess of (i) the fair
market value of one (1) share of Common Stock as of the date the Tandem Stock
Appreciation Right is exercised over (ii) the option price per share specified
in such Option, multiplied by (B) the number of shares of Common Stock subject
to the Option, or portion thereof, which is surrendered. Cash shall be
delivered in lieu of any fractional shares.
7.4 EXERCISE OF NONTANDEM STOCK APPRECIATION RIGHTS. The exercise of a
Nontandem Stock Appreciation Right shall entitle the associate to receive from
the Company that number of shares of Common Stock having an aggregate fair
market value equal to (A) the excess of (i) the fair market value of one (1)
share of Common Stock as of the date on which the Nontandem Stock Appreciation
Right is exercised over (ii) the base price of the shares covered by the
Nontandem Stock Appreciation
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Right, multiplied by (B) the number of shares of Common Stock covered by the
Nontandem Stock Appreciation Right, or the portion thereof being exercised. Cash
shall be delivered in lieu of any fractional shares.
7.5 SETTLEMENT OF STOCK APPRECIATION RIGHTS. As soon as is reasonably
practicable after the exercise of a Stock Appreciation Right, the Company shall
(i) issue, in the name of the associate, stock certificates representing the
total number of full shares of Common Stock to which the associate is entitled
pursuant to Section 7.3 or 7.4 hereof and cash in an amount equal to the fair
market value, as of the date of exercise, of any resulting fractional shares,
and (ii) if the Committee causes the Company to elect to settle all or part of
its obligations arming out of the exercise of the Stock Appreciation Right in
cash pursuant to Section 7.6, deliver to the associate an amount in cash equal
to the fair market value, as of the date of exercise, of the shares of Common
Stock it would otherwise be obligated to deliver.
7.6 CASH SETTLEMENT. The Committee, in its discretion, may cause the
Company to settle all or any part of its obligation arising out of the exercise
of a Stock Appreciation Right by the payment of cash in lieu of all or part of
the shares of Common Stock it would otherwise be obligated to deliver in an
amount equal to the fair market value of such shares on the date of exercise.
ARTICLE 8
NONTRANSFERABILITY OF OPTIONS AND STOCK APPRECIATION RIGHTS
No Option or Stock Appreciation Right may be transferred, assigned,
pledged or hypothecated (whether by operation of law or otherwise), except as
provided by will or the applicable laws of descent and distribution, and no
Option or Stock Appreciation Right shall be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of an Option or a Stock Appreciation Right not specifically
permitted herein shall be null and void and without effect. An Option or Stock
Appreciation Right may be exercised by an associate only during his or her
lifetime, or following his or her death pursuant to Article l0.
ARTICLE 9
TERMINATION OF EMPLOYMENT
9.1 EXERCISE AFTER TERMINATION OF EMPLOYMENT. In the event that the
employment of an associate to whom an Option or Stock Appreciation Right has
been granted under the Plan shall be terminated (for reasons other than death
or total disability), such Option or Stock Appreciation Right may be exercised
(to the extent
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that the associate was entitled to do so on the date of the termination
of his employment) at any time within three (3) months after such termination
of employment.
9.2 TOTAL DISABILITY. In the event that an associate to whom an Option
or Stock Appreciation Right has been granted under the Plan shall become
totally disabled, such Option or Stock Appreciation Right may be exercised at
any time during the first nine (9) months that the associate receives benefits
under the VABCO Long-Term Disability Plan (the "Disability Plan") to the extent
otherwise exercisable during such nine-month period. For purposes hereof, "total
disability" shall have the definition set forth in the Disability Plan, which
definition is hereby incorporated by reference.
ARTICLE 10
DEATH OF ASSOCIATE
If an associate to whom an Option or Stock Appreciation Right has been
granted under the Plan shall die while employed by the Company or one of its
subsidiaries or within three (3) months after the termination of such
employment, such Option or Stock Appreciation Right may be exercised to the
extent that the associate was entitled to do so at the time of his or her
death, by the associate's estate or by the person who acquires the right to
exercise such Option or Stock Appreciation Right upon his or her death by
bequest or inheritance. Such exercise may occur at any time within one (1) year
after the date of the associate's death, but in no case later than the date on
which the Option or Stock Appreciation Right terminates.
ARTICLE 11
RESTRICTED SHARES
11.1 GRANT OF RESTRICTED SHARES. The Committee may from time to time
cause the Company to grant Restricted Shares under the Plan to associates,
subject to such restrictions, conditions and other terms as the Committee may
determine.
11.2 RESTRICTIONS. At the time a grant of Restricted Shares is made,
the Committee shall establish a period of time (the "Restricted Period").
applicable to such Restricted Shares. Each grant of Restricted Shares may be
subject to a different Restricted Period. The Committee may, in its sole
discretion, at the time a grant is made, prescribe restrictions in addition to
or other than the expiration of the Restricted Period, including the
satisfaction of corporate or individual performance objectives as provided in
Section 11.7, which may be applicable to all or any portion of the Restricted
Shares. Except with respect to grants of Restricted Shares intended
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to qualify as performance-based compensation for purposes of Section 162(m)
of the Code, the Committee may also, in its sole discretion, shorten or
terminate the Restricted Period or waive any other restrictions applicable to
all or a portion of such Restricted Shares. None of the Restricted Shares may
be sold, transferred, assigned, pledged or otherwise encumbered or disposed
of during the Rated Period or prior to the satisfaction of any other
restrictions prescribed by the Committee with respect to such Restricted
Shares.
11.3 RESTRICTED STOCK CERTIFICATES. The Company shall issue, in the
name of each associate to whom Restricted Shares have been granted, stock
certificates representing the total number of Restricted Shares granted to the
associate, as soon as reasonably practicable after the grant. The Secretary of
the Company shall hold such certificates, properly endorsed for transfer, for
the associate's benefit until such time as the Restricted Shares are forfeited
to the Company, or the restrictions lapse.
11.4 RIGHTS OF HOLDERS OF RESTRICTED SHARES. Except as determined by
the Committee either at the time Restricted Shares are awarded or at any time
thereafter prior to the lapse of the restrictions, holders of Restricted Shares
shall not have the right to vote such shares or the right to receive any
dividends with respect to such shares. All distributions, if any, received by an
associate with respect to Restricted Shares as a result of any stock split-up,
stock distribution, a combination of shares, or other similar transaction shall
be subject to the restrictions of this Article 11.
11.5 FORFEITURE. Any restricted Shares granted to an associate
pursuant to the Plan shall be forfeited if the associate terminates employment
with the Company or its subsidiaries prior to the expiration or termination of
the Restricted Period and the satisfaction of any other conditions applicable to
such Restricted Shares. Upon such forfeiture, the Secretary of the Company shall
either cancel or retain in its treasury the Restricted Shares that are
forfeited to the Company. If the associate's employment terminates as a result
of his or her death or total disability (as defined in Article 9), Restricted
Shares of such associate shall be forfeited, unless the Committee, in its sole
discretion, shall determine otherwise.
11.6 DELIVERY OF RESTRICTED SHARES. Upon the expiration or termination
of the Restricted Period and the satisfaction of any other conditions
prescribed by the Committee, the restrictions applicable to the Restricted
Shares shall lapse and a stock certificate for the number of Restricted Shares
with respect to which the restrictions have lapsed shall be delivered, free of
all such restrictions, to the associate or the associate's beneficiary or
estate, as the case may be.
11.7 PERFORMANCE BASED-OBJECTIVES. At the time of the grant of
Restricted Shares to an associate, and prior to the beginning of the
performance period to which performance objectives relate, the Committee may
establish performance objectives based on operating income and/or gross margin
objectives of the Company or any subsidiary or division thereof. These
objectives shall be based on an analysis of
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historical performance and growth expectations for the relevant business
unit, financial results of other comparable businesses both inside and outside
the Company, and progress towards achieving the long-range strategic plan for
that business unit. These objectives and determination of results shall be based
entirely on such financial measures, and the Committee shall have no
discretion to modify such results.
ARTICLE 12
PERFORMANCE SHARES
12.1 AWARD OF PERFORMANCE SHARES. For each Performance Period (as
defined in Section 12.2), Performance Shares may be granted under the Plan to
such associates of the Company and its subsidiaries as the Committee shall
determine. Each Performance Share shall be deemed to be equivalent to one (1)
share of Common Stock. Performance Shares granted to an associate shall be
credited to an account (a "Performance Share Account") established and
maintained for such associate.
12.2 PERFORMANCE PERIOD. "Performance Period" shall mean such period
of time as shall be determined by the Committee in its sole discretion.
Different Performance Periods may be established for different associates
receiving Performance Shares. Performance Periods may run consecutively or
concurrently.
12.3 RIGHT TO PAYMENT OF PERFORMANCE SHARES. With respect to each
award of Performance Shares under this Plan, the Committee shall specify
performance objectives (the "Performance Objectives") which must be satisfied in
order for the associate to vest in the Performance Shares which have been
awarded to him or her for the Performance Period. If the Performance Objectives
established for an associate for the Performance Period are partially but not
fully met, the Committee may, nonetheless, in its sole discretion, determine
that all or a portion of the Performance Shares have vested. If the Performance
Objectives for a Performance Period are exceeded, the Committee may, in its sole
discretion, grant additional, fully vested Performance Shares to the associate.
The Committee may also determine, in its sole discretion, that Performance
Shares awarded to an associate shall become partially or fully vested upon the
associate's death, total disability (as defined in Article 9) or retirement, or
upon the termination of the associate's employment prior to the end of the
Performance Period.
12.4 PAYMENT FOR PERFORMANCE SHARES. As soon as practicable following
the end of a Performance Period, the Committee shall determine whether the
Performance Objectives for the Performance Period have been achieved (or
partially achieved to the extent necessary to permit partial vesting at the
discretion of the Committee pursuant to Section 12.3). If the Performance
Objectives for the Performance Period have been exceeded, the Committee shall
determine whether
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additional Performance Shares shall be granted to the associate pursuant to
Section 12.3. As soon as reasonably practicable after such determinations, or
at such later date as the Committee shall determine at the time of grant, the
Company shall pay to the associate an amount with respect to each vested
Performance Share equal to the fair market value of a share of Common Stock on
such payment date or, if the Committee shall so specify at the time of grant, an
amount equal to (i) the fair market value of a share of Common Stock on the
payment date less (ii) the fair market value of a share of Common Stock on the
date of grant of the Performance Share. Payment shall be made entirely in cash,
entirely in Common Stock (including Restricted Shares) or in such combination
of cash and Common Stock as the Committee shall determine.
12.5 VOTING AND DIVIDEND RIGHTS. No associate shall be entitled to any
voting rights, to receive any dividends, or to have his or her Performance
Share Account credited or increased as a result of any dividends or other
distribution with respect to Common Stock. Notwithstanding the foregoing,
within sixty (60) days from the date of payment of a dividend by the Company on
its shares of Common Stock, the Committee, in its discretion, may credit an
associate's Performance Share Account with additional Performance Shares having
an aggregate fair market value equal to the dividend per share paid on the
Common Stock multiplied by the number of Performance Shares credited to his or
her account at the time the dividend was declared.
ARTICLE 13
PERFORMANCE UNITS
13.1 AWARD OF PERFORMANCE UNITS. For each Performance Period (as
defined in Section 12.2), Performance Units may be granted under the Plan to
such associates of the Company and its subsidiaries as the Committee shall
determine. The award agreement covering such Performance Units shall specify a
value for each Performance Unit or shall set forth a formula for determining
the value of each Performance Unit at the time of payment (the "Ending Value").
If necessary to make the calculation of the amount to be paid to the associate
pursuant to Section 13.3, the Committee shall also state in the award agreement
the initial value of each Performance Unit (the "Initial Value"). Performance
Units granted to an associate shall be credited to an account (a "Performance
Unit Account") established and maintained for such associate.
13.2 RIGHT TO PAYMENT OF PERFORMANCE UNITS. With respect to each award
of Performance Units under this Plan, the Committee shall specify Performance
Objectives which must be satisfied in order for the associate to vest in the
Performance Units which have been awarded to him or her for the Performance
Period. If the Performance Objectives established for an associate for the
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Performance Period are partially but not fully met, the Committee may,
nonetheless, in its sole discretion, determine that all or a portion of the
Performance Units have vested. If the Performance Objectives for a
Performance Period are exceeded, the Committee may, in its sole discretion,
grant additional, fully vested Performance Units to the associate. The
Committee may also determine, in its sole discretion, that Performance Units
awarded to an associate shall become partially or fully vested upon the
associate's death, total disability (as defined in Article 9) or retirement, or
upon the termination of employment of the associate by the Company.
13.3 PAYMENT FOR PERFORMANCE UNITS. As soon as practicable following
the end of a Performance Period, the Committee shall determine whether the
Performance Objectives for the Performance Period have been achieved (or
partially achieved to the extent necessary to permit partial vesting at the
discretion of the Committee pursuant to Section 13.2). If the Performance
Objectives for the Performance Period have been exceeded, the Committee shall
determine whether additional Performance Units shall be granted to the
associate pursuant to Section 13.2. As soon as reasonably practicable after such
determinations, or at such later date as the Committee shall determine at the
time of grant, the Company shall pay to the associate an amount with respect to
each vested Performance Unit equal to the Ending Value of the Performance Unit
or, if the Committee shall so specify at the time of grant, an amount equal to
(i) the Ending Value of the Performance Unit less (ii) the Initial Value of the
Performance Unit. Payment shall be made entirely in cash, entirely in Common
Stock (including Restricted Shares) or in such combination of cash and Common
Stock as the Committee shall determine.
ARTICLE 14
UNRESTRICTED SHARES
14.1 AWARD OF UNRESTRICTED SHARES. The Committee may cause the Company
to grant Unrestricted Shares to associates at such time or times, in such
amounts and for such reasons as the Committee, in its sole discretion, shall
determine. Except as required by applicable law, no payment shall be required
for Unrestricted Shares.
14.2 DELIVERY OF UNRESTRICTED SHARES. The Company shall issue, in the
name of each associate to whom Unrestricted Shares have been granted, stock
certificates representing the total number of Unrestricted Shares granted to
the associate, and shall deliver such certificates to the associate as soon as
reasonably practicable after the date of grant or on such later date as the
Committee shall determine at the time of grant.
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ARTICLE 15
TAX OFFSET PAYMENTS
The Committee shall have the authority at the time of any award under
this Plan or anytime thereafter to make Tax Offset Payments to assist
associates in paying income taxes incurred as a result of their participation
in this Plan. The Tax Offset Payments, which, if awarded, may be in cash or
shares of Common Stock, shall be determined by multiplying a percentage
established by the Committee times all or a portion (as the Committee shall
determine) of the taxable income recognized by an associate upon (i) the
exercise of a Nonstatutory Stock Option or a Stock Appreciation Right, (ii) the
disposition of shares received upon exercise of an Incentive Stock Option,
(iii) the lapse of restrictions on Restricted Shares, (iv) the award of
Unrestricted Shares, or (v) payments for Performance Shares or Performance
Units. The percentage shall be established, from time to time, by the
Committee at that rate which the Committee, in its sole discretion, determines
to be appropriate and in the best interests of the Company to assist associates
in paying income taxes incurred as a result of the events described in the
preceding sentence. Tax Offset Payments shall be subject to the restrictions
on transferability applicable to Options and Stock Appreciation Rights under
Article 8.
ARTICLE 16
ADJUSTMENT UPON CHANGES IN CAPITALIZATION
Notwithstanding any other provision of the Plan, the Committee may at any
time makes or provide for such adjustments to the Plan, to the number and
class of shares available thereunder or to any outstanding Options, Stock
Appreciation Rights, Restricted Shares or Performance Shares as it shall deem
appropriate to prevent dilution or enlargement of rights, including
adjustments in the event of changes in the number of shares of outstanding
Common Stock by reason of stock dividends, extraordinary cash dividends,
split-ups, recapitalizations, mergers, consolidations, combinations or
exchanges of shares, separations, reorganizations, liquidations and the like.
ARTICLE 17
AMENDMENT AND TERMINATION
The Board may suspend, terminate, modify or amend the Plan, provided that
any amendment that would materially increase the aggregate number of shares
which may be issued under the Plan shall be subject to the approval of the
Company's stockholders, except that any such increase or modification that may
result from
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adjustments authorized by Article 16 does not require such approval. If
the Plan is terminated, the terms of the Plan shall, notwithstanding such
termination, continue to apply to awards granted prior to such termination. No
suspension, termination, modification or amendment of the Plan may, without the
consent of the associate to whom an award shall theretofore have been granted,
adversely affect the rights of such associate under such award.
ARTICLE 18
WRITTEN AGREEMENT
Each award of Options, Stock Appreciation Rights, Restricted Shares,
Performance Shares, Performance Units, Unrestricted Shares and Tax Offset
Payments shall be evidenced by a written agreement, executed by the associate
and the Company, and containing such restrictions, terms and conditions, if
any, as the Committee may require. In the event of any conflict between a
written agreement and the Plan, the terms of the Plan shall govern.
ARTICLE 19
MISCELLANEOUS PROVISIONS
19.1 FAIR MARKET VALUE. For purposes of this Plan, fair market value
with respect to the exercise price of options granted prior to and subject
to the consummation of the initial public offering referred to in Section
1.1 hereof shall be the price at which shares of Common Stock are sold to
the public pursuant to such offering and, for all other purposes hereunder,
shall be the closing price of the Common Stock as reported on the principal
exchange on which the shares are listed for the date on which the grant,
exercise or other transaction occurs, or if there were no sales on such date,
the most recent prior date on which there were sales.
19.2 TAX WITHHOLDING. The Company shall have the right to require
associates or their beneficiaries or legal representatives to remit to the
Company an amount sufficient to satisfy Federal, state and local withholding
tax requirements, or to deduct from all payments under this Plan, including Tax
Offset Paymemts, amounts sufficient to satisfy all withholding tax
requirements. Whenever payments under the Plan are to be made to an associate
in cash, such payments shall be net of any amounts sufficient to satisfy all
Federal, state and local withholding tax requirements. The Committee may,
in its discretion, permit an associate to satisfy his or her tax withholding
obligation either by (i) surrendering shares owned by the associate or (ii)
having the Company withhold from shares otherwise deliverable to the
associate. Shares surrendered or withheld shall be valued at their fair market
value as of the date on which income is required to be recognized for income
tax purposes. In the
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case of an award of Incentive Stock Options, the foregoing right shall be
deemed to be provided to the associate at the time of such award.
19.3 Compliance With Section 16(b) and Section 162(m). In the case of
associates who are or may be subject to Section 16 of the Act, it is the
intent of the Company that any award granted hereunder satisfy and be
interpreted in a manner that satisfies the applicable requirements of
Rule 16b-3, so that such person will be entitled to the benefits of
Rule 16b-3 or other exemptive rules under Section 16 of the Act and will not
be subjected to liability thereunder. If any provision of the Plan or any
award would otherwise conflict with the intent expressed herein, that
provisions to the extent possible, shall be interpreted and deemed amended so
as to avoid such conflict. To the extent of any remaining irreconcilable
conflict with such intent, such provision shall be deemed void as applicable
to associates who are or may be subject to Section 16 of the Act. If any award
hereunder is intended to qualify as performance-based for purposes of Section
162(m) of the Code, the Committee shall not exercise any discretion to increase
the payable under such award except to the extent permitted by Section 162(m)
and the regulations thereunder.
19.4 SUCCESSORS. The obligations of the Company under the Plan shall be
binding upon any successor corporation or organization resulting from the
merger, consolidation or other reorganization of the Company, or upon any
successor corporation or organization succeeding to substantially all of the
assets and business of the Company. In the event of any of the foregoing, the
Committee may, at its discretion prior to the consummation of the transaction,
cancel, offer to purchase, exchange, adjust or modify any outstanding awards,
at such time and in such manner as the Committee deems appropriate and in
accordance with applicable law.
l9.5 GENERAL CREDITOR STATUS. Associates shall have no right, title, or
interest whatsoever in or to any investments which the Company may make to
aid it in meeting its obligations under the Plan. Nothing contained in the
Plan, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind, or a fiduciary relationship between
the Company and any associate or beneficiary or legal representative of such
associate. To the extent than any person acquires a right to receive payments
from the Company under the Plan, such right shall be no greater than the right
of an unsecured general creditor of the Company. All payments to be made
hereunder shall be paid from the general funds of the Company and no special
or separate fund shall be established and no segregation of assets shall be
made to assure payment of such amounts except as expressly set forth in
the Plan.
19.6 NO RIGHT TO EMPLOYMENT. Nothing in the Plan or in any written
agreement entered into pursuant to Article 18, nor the grant of any award,
shall confer upon any associate any right to continue in the employ of the
Company or a subsidiary or to be entitled to any remuneration or benefits
not set forth in the Plan or such written agreement or interfere with or limit
the right of the Company or a
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subsidiary to modify the terms of or terminate such associate's employment
at any time.
19.7 NOTICES. Notices required or permitted to be made under the Plan
shall be sufficiently made if sent by registered or certified mail addressed
(a) to the associate at the associate's address as set forth in the books and
records of the Company or its subsidiaries, or (b) to the Company or the
Committee at the principal office of the Company.
19.8 SEVERABILITY. In the event that any provision of the Plan shall be
held illegal or invalid for any reason, such illegality or invalidity shall
not affect the remaining parts of the Plan, and the Plan shall be construed
and enforced as if the illegal or invalid provision had not been included.
19.9 GOVERNING LAW. To the extent not preempted by Federal law, the Plan,
and all agreements hereunder, shall be construed in accordance with and
governed by the laws of the State of Delaware.
19.10 TERM OF PLAN. Unless earlier terminatd pursuant to Article 17 hereof,
the Plan shall terminate on the tenth (l0th) anniversary of the earlier of the
date of adoption of the Plan by the Board or the date of the consummation of
the initial public offering referred to in Section 1.1 hereof.
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EXHIBIT 5.1
[ABERCROMBIE & FITCH CO. LETTERHEAD]
November 8, 1996
Abercrombie & Fitch Co.
Four Limited Parkway
Reynoldsburg, Ohio 43068
Re: Securities Act of 1993 Form S-8 Registration Statement for the
Abercrombie & Fitch Co. 1996 Stock Option and Performance Incentive Plan
Ladies and Gentlemen:
I have acted as counsel for Abercrombie & Fitch Co., a Delaware
corporation (the "Company"), in connection with the proposed issuance
by the Company of up to 3,500,000 shares of the Company's Class A
common stock, par value $.01 per share (the "Common Stock"), under the
Abercrombie & Fitch & Co. 1996 Stock Option and Performance Incentive
Plan (the "Plan"), which Common Stock is being registered pursuant to
the filing of a Registration Statement on Form S-8 under the
Securities Act of 1933 (the "Act").
I have examined the Certificate of Incorporation of the Company, its
Bylaws, the Plan and such other corporate records, certificates,
documents and matters of law as I have deemed necessary to render this
opinion.
Based on the foregoing, I am of the opinion that the shares of Common
Stock issued or to be issued under the terms of the Plan will be duly
authorized, validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5.1 and 23.2
to the Registration Statement. By giving such consent, I do not admit
that I am an expert with respect to any part of the Registration
Statement, including this exhibit, within the meaning of the term
"expert" as used in the Act or the rules and regulations of the
Securities and Exchange Commission issued thereunder.
Very truly yours,
ABERCROMBIE & FITCH CO.
By: Samuel P. Fried
------------------------
Samuel P. Fried
General Counsel
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8, relating to the Abercrombie & Fitch 1996 Stock Option and Performance
Incentive Plan, of our reports dated July 11, 1996, on our audits of the
balance sheet of the Abercrombie & Fitch Co. as of July 11, 1996, and the
consolidated financial statements of the Abercrombie & Fitch Businesses as of
February 3, 1996 and January 28, 1995, and for the fiscal years ended February
3, 1996, January 28, 1995 and January 29, 1994, which reports were included in
the prospectus contained in the registration statement on Form S-1 (Reg. No.
333-8231) for the Abercrombie & Fitch Co. filed on September 25, 1996.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Columbus, Ohio
November 7, 1996
<PAGE> 1
EXHIBIT 24
POWER OF ATORNEY FOR
OFFICERS AND DIRECTORS
OF
ABERCROMBIE & FITCH CO.
Pursuant to the requirements of the Securities Act of 1933, the
undersigned officers and/or directors of Abercrombie & Fitch Co., a Delaware
corporation (the "Company"), hereby appoint Kenneth B. Gilman as
attorney-in-fact with full power of substitution and resubstitution to sign for
the undersigned and in the name of the undersigned in any and all capacities
with respect to the registration on Form S-8 of 3,500,000 shares of Common Stock
of the Company under the Abercrombie & Fitch Co. 1996 Stock Option and
Performance Incentive Plan (the "Registration Statement") with the Securities
and Exchange Commission ("SEC"), and to sign any and all amendments (including
post-effective amendments) thereto and any and all applications or other
documents to be filed with the SEC pertaining to the Registration Statement,
and to grant unto the attorney-in-fact and agent the full power and authority
to do and perform each and every act and thing required to be done, as fully
to all intents and purposes as the undersigned could do if personally present.
The undersigned hereby ratifies and confirms all that the attorney-in-fact and
agent or its substitutes may lawfully do or cause to be done by virtue hereof.
Signatures Title Date
- ---------- ----- ----
/s/ Leslie H. Wexner Chairman of the Board November 5, 1996
- -------------------------
Leslie H. Wexner
/s/ Michael S. Jeffries President, Chief Executive November 5, 1996
- ------------------------- Officer and Director
Michael S. Jeffries (principal executive officer)
/s/ Seth R. Johnson Vice President-Chief November 5, 1996
- ------------------------- Financial Officer
Seth R. Johnson (principal financial and
accounting officer)
/s/ E. Gordon Gee Director November 5, 1996
- -------------------------
E. Gordon Gee
/s/ Donald B. Shackleford Director November 5, 1996
- -------------------------
Donald B. Shackleford
/s/ Roger D. Blackwell Director November 5, 1996
- -------------------------
Roger D. Blackwell
