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As filed on July 30, 1998 Registration No. ___-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ABERCROMBIE & FITCH CO.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 31-1469076
- ------------------------------- -----------------------------------
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
Four Limited Parkway East, Reynoldsburg, Ohio 43068
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(Address of Principal Executive Offices) (Zip Code)
ABERCROMBIE & FITCH CO. SAVINGS AND RETIREMENT PLAN
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ABERCROMBIE & FITCH CO. ASSOCIATE STOCK PURCHASE PLAN
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(Full Title of the Plans)
SETH R. JOHNSON
Vice President and Chief Financial Officer
Abercrombie & Fitch Co.
Four Limited Parkway East
Reynoldsburg, Ohio 43068
(614) 577-6500
-------------------------------------------------------------
(Name, Address and Telephone Number of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price per Aggregate Offering Amount of
to be Registered(1) Registered(2) Share(3) Price(3) Registration Fee
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------
Class A Common
Stock, $.01 par
value 500,000 shares $45.59375 $22,796,875 $6,725.08
=========================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described herein.
(2) Of this number, 250,000 shares are being registered for issuance under
the Savings and Retirement Plan and 250,000 shares are being registered for
issuance under the Associate Stock Purchase Plan.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (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 July 28, 1998.
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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) The Registrant's Annual Report on Form 10-K for its fiscal year
ended January 31, 1998.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended May 2, 1998.
(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") and
incorporated by reference in the Registrant's Registration Statement on Form 8-A
filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act")
on August 29, 1996.
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 pursuant to the Plans 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.
The validity of the issuance of the shares of Class A Common Stock of
the Registrant being registered on this Registration Statement on Form S-8 will
be passed upon for the Registrant by Vorys, Sater, Seymour and Pease LLP, 52
East Gay Street, P.O. Box 1008, Columbus, Ohio 43216-1008. Douglas L. Williams,
a director of the Registrant, is a partner in such firm. As of July 6, 1998,
members of Vorys, Sater, Seymour and Pease LLP and attorneys employed thereby,
together with members of their immediate families, beneficially owned an
aggregate of 1,300 shares of Class A Common Stock of the Registrant.
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
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indemnity, then the Court of Chancery or such other court may permit indemnity
for such officer or director to the extent it deems proper.
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 Registrant's Amended and Restated 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.
The Abercrombie & Fitch Co. Savings and Retirement Plan provides for
indemnification by the Registrant of the members of such plan's administrative
committee for costs, expenses and liabilities incurred by such members in
connection with their service as a member of such committee, subject to the
conditions and exceptions set forth in such plan. Seth R. Johnson, an officer
and director of the Registrant, is a member of such plan's administrative
committee.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See Exhibit Index on page 7.
The Registrant undertakes to submit the Abercrombie & Fitch Co.
Savings and Retirement Plan to the Internal Revenue Service in a timely manner
and to make all changes required by the Internal Revenue Service in order to
qualify the Plan under Section 401(a) of the Internal Revenue Code.
Item 9. Undertakings.
(a) Rule 415 Offering.
The 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");
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(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;
(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.
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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 July 29, 1998.
ABERCROMBIE & FITCH CO.
(The Registrant)
By /s/ Seth R. Johnson
-------------------------
Seth R. Johnson,
Vice President and Chief Financial Officer
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 July 29, 1998.
Signature Title
- --------- -----
*
- ------------------------
Michael S. Jeffries Chairman of the Board of Directors and
Chief Executive Officer
(Principal Executive Officer)
/s/ Seth R. Johnson
- ------------------------ Vice President and Chief Financial Officer
Seth R. Johnson and Director (Principal Financial and
Accounting Officer)
*
- ------------------------ Director
George Foos
*
- ------------------------ Director
John A. Golden
*
- ------------------------ Director
John W. Kessler
*
- ------------------------ Director
Sam N. Shahid, Jr.
*
- ------------------------ Director
Douglas L. Williams
5
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*Seth R. Johnson, 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/ Seth R. Johnson
--------------------
Seth R. Johnson,
Attorney-in-Fact
The Plans
Pursuant to the requirements of the Securities Act of 1933, the administrator
of the Abercrombie & Fitch Co. Savings and Retirement Plan and the Abercrombie
& Fitch Co. Associate Stock Purchase Plan have 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 July 29, 1998.
ABERCROMBIE & FITCH CO.
SAVINGS AND RETIREMENT PLAN
By: /s/ Seth R. Johnson
-------------------------------------
Seth R. Johnson, Chairman of the
Benefits Administrative Committee
ABERCROMBIE & FITCH CO.
ASSOCIATE STOCK PURCHASE PLAN
By: /s/ Seth R. Johnson
-------------------------------------
Seth R. Johnson, Chairman of the
Benefits Administrative Committee
6
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EXHIBIT INDEX
The following exhibits are filed as part of this Registration Statement:
Exhibit
4.1 Amended and Restated Certificate of Incorporation of the Registrant
incorporated by reference to Exhibit 3.1 of the Registrant's quarterly
report on Form 10-Q for the quarter ended November 2, 1996.
4.2 Form of Bylaws of the Registrant incorporated by reference to Exhibit 3.1
of the Registrant's quarterly report on Form 10-Q for the quarter ended
November 2, 1996.
5.1 Legal opinion of Vorys, Sater, Seymour and Pease LLP.
15.1 Letter of PricewaterhouseCoopers LLP regarding Unaudited Interim Financial
Information.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Vorys, Sater, Seymour and Pease LLP. (included in the opinion
filed as Exhibit 5.1).
24.1 Power of Attorney.
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EXHIBIT 5.1
[LETTERHEAD OF VORYS, SATER, SEYMOUR AND PEASE LLP]
(614) 464-6400
July 30, 1998
Abercrombie & Fitch Co.
Four Limited Parkway East
Reynoldsburg, OH 43068
Re: Form S-8 Registration Statement under the Securities Act of 1933
for the Abercrombie & Fitch Co. Associate Stock Purchase Plan
and the Abercrombie & Fitch Co. Savings and Retirement Plan
Ladies and Gentlemen:
We 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 500,000 shares of the Company's Class A Common Stock, par
value $.01 per share (the "Common Stock"), under the Abercrombie & Fitch Co.
Associate Stock Purchase Plan and the Abercrombie & Fitch Co. Savings and
Retirement Plan (collectively, the "Plans"), which Common Stock is being
registered under the Securities Act of 1933 (the "Act") on a Registration
Statement on Form S-8 (the "Registration Statement").
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K of the General Rules and Regulations
promulgated under the Act (the "Rules and Regulations").
In connection with the preparation of this opinion, we have examined an
original or copy of and have relied upon the accuracy of, without independent
verification or investigation:
(1) The Registration Statement filed with the Securities and Exchange
Commission through the EDGAR system under the Act on the date hereof.
<PAGE> 2
Abercrombie & Fitch Co.
July 30, 1998
Page 2
(2) The Amended and Restated Certificate of Incorporation and the Amended
and Restated Bylaws of the Company, each as currently in effect.
(3) The Plans.
(4) The resolutions adopted by the Company's Board of Directors relating
to the issuance of the Common Stock and the approval of the Plans.
(5) Such other records, documents or instruments as in our judgment are
necessary or appropriate to enable us to render the opinions herein.
In our examinations and in rendering the opinion set forth below, we have
assumed, without independent investigation or examination, (a) the genuineness
of all signatures, the authenticity and completeness of all documents submitted
to us as copies and the authenticity of such originals of such latter
documents; and (b) that the final, executed copy of each document submitted to
us in draft form will not differ in any material respect from the draft form of
such document submitted to us. As to the facts material to our opinion
expressed herein which were not independently established or verified, we have
relied upon oral or written statements and representations of officers and
other representatives of the Company.
Based upon and subject to the foregoing, and the further qualifications
and limitations set forth below, as of the date hereof, we are of the opinion
that the 500,000 shares of Common Stock to be issued under the terms of the
Plans are duly authorized and, when issued in accordance with the terms and
conditions of the Plans, will be validly issued, fully paid and nonassessable.
This opinion is furnished by us solely for the benefit of the Company in
connection with the offering of the securities of the Company pursuant to the
Plans and the filing of the Registration Statement and any amendments thereto.
This opinion may not be relied upon by any other person or assigned, quoted or
otherwise used without our specific written consent.
We are members of the Bar of the State of Ohio and do not purport to be
experts in the laws of any jurisdiction other than the laws of the State of
Ohio and the United States of America; except that for purposes of this
opinion, we have reviewed the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as Exhibits 5.1 and 23.2
to the Registration Statement and to the reference to us in the Registration
Statement. By giving such consent, we do not admit that we come within the
category of persons whose consent is required under Section 7 of the Act or the
Rules and Regulations.
Very truly yours,
VORYS, SATER, SEYMOUR AND PEASE LLP
ETF:i
<PAGE> 1
EXHIBIT 15.1
[LETTERHEAD OF PRICEWATERHOUSECOOPERS LLP]
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Abercrombie & Fitch Co.
We are aware that our report dated May 7, 1998 on our review of interim
consolidated financial information of Abercrombie & Fitch Co. and Subsidiaries
(the "Company") for the thirteen-week period ended May 2, 1998 and included in
the Company's quarterly report on Form 10-Q for the period then ended, is
incorporated by reference in this registration statement on this Form S-8.
Pursuant to Rule 436(c) under the Securities Act of 1933, this report should not
be considered a part of the registration statement prepared or certified by us
within the meaning of Sections 7 and 11 of that Act.
PricewaterhouseCoopers LLP
Columbus, Ohio
July 29, 1998
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EXHIBIT 23.1
[LETTERHEAD OF PRICEWATERHOUSECOOPERS LLP]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Abercrombie & Fitch Co. on this Form S-8 of our report dated February 20, 1998,
and our audits of the consolidated financial statements of Abercrombie & Fitch
Co. as of January 31, 1998 and February 1, 1997, and for the fiscal years ended
January 31, 1998, February 1, 1997, and February 3, 1996.
PricewaterhouseCoopers LLP
Columbus, Ohio
July 29, 1998
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY 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 Seth R. Johnson 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 500,000 shares of the Company's Class A Common Stock
under the Abercrombie & Fitch Co. Associate Stock Purchase Plan and the
Abercrombie & Fitch Co. Savings and Retirement 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 his substitutes may lawfully do or cause to be
done by virtue hereof.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Michael S. Jeffries Chairman of the Board July 16, 1998
- ----------------------- and Chief Executive Officer
Michael S. Jeffries (Principal Executive Officer)
/s/ George Foos Director July 16, 1998
- -----------------------
George Foos
/s/ John A. Golden Director July 16, 1998
- -----------------------
John A. Golden
/s/ John W. Kessler Director July 16, 1998
- -----------------------
John W. Kessler
/s/ Sam N. Shahid, Jr. Director July 16, 1998
- -----------------------
Sam N. Shahid, Jr.
/s/ Douglas L. Williams Director July 16, 1998
- -----------------------
Douglas L. Williams
</TABLE>
