<PAGE> 1
As filed with the Securities and Exchange Commission on June 12, 1995
Registration No.
-----------
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FABRI-CENTERS OF AMERICA, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant specified in its charter)
Ohio 34-0720629
- ------------------------------- ------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5555 Darrow Road, Hudson, Ohio 44236
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(Address of Principal Executive Offices) (Zip Code)
1994 Executive Incentive Plan
- --------------------------------------------------------------------------------
(Full title of the plan)
Mr. Robert Norton, Vice Chairman of the Board and Chief Financial Officer
5555 Darrow Road, Hudson, Ohio 44236
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(Name and address of agent for service)
(216) 656-2600
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered (1) registered share (2) (3) price fee
-------------- ---------- ------------- ---------- ------------
<S> <C> <C> <C> <C>
Shares 500,000 $20.06 $10,030,000 $3,458.64
of Common shares
Stock
</TABLE>
(1) Pursuant to Rule 416 of the Securities Act of 1933 (the "Securities
Act"), this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plan described herein.
(2) Estimated pursuant to paragraphs (c) and (h) of Rule 457 under the
Securities Act, on the basis of the average of the high and low sale
prices for a share of Common Stock on the New York Stock Exchange -
Composite Transactions Tape on June 8, 1995, within five business days
prior to filing.
(3) Estimated solely for the purpose of calculating the registration fee.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated herein by reference and made a part hereof:
a) The Registrant's Annual Report on Form 10-K and Form 10-K/A for the
fiscal year ended January 28, 1995.
b) The descriptions of the Registrant's shares of Common Stock and rights
to purchase shares of Common Stock under certain circumstances are
contained in the Registrant's Registration Statements filed with the
Commission pursuant to Section 12 of the Securities Exchange Act of
1934, as amended (the "1934 Act"), including any amendment or report
filed for the purpose of updating that description; and
All documents hereafter filed by the Registrant with the Commission pursuant to
Sections 13, 14 or 15(d) of the Exchange Act from the date hereof and prior to
the termination of the awards of securities awarded hereby shall be deemed to be
incorporated by reference herein and to be 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
Article V of the Company's Amended Regulations provides as
follows:
INDEMNIFICATION
SECTION 1. Third Party Actions. The Registrant shall 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 (other than an action
or suit by or in the right of the Registrant), by reason of the fact
that he is or was a director, officer, employee, or agent of the
Registrant, or is or was serving at the request of the Registrant as a
director, trustee, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against
expenses (including attorneys' fees), judgments, fines, and amounts
paid in settlement actually and reasonably incurred by him in
connection with the action, suit, or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Registrant and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit, or proceeding by
judgment, order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith, and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Registrant or that, with respect to any criminal
action or proceeding, he had reasonable cause to believe that his
conduct was unlawful.
<PAGE> 3
SECTION 2. Derivative Actions. The Registrant shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the right of
the Registrant to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee, or agent of the
Registrant, or is or was serving at the request of the Registrant as a
director, trustee, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with a defense or settlement of the action or suit if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interest of the Registrant, except that no
indemnification shall be made in respect of any claim, issue, or matter
as to which that person shall have been finally adjudged to be liable
for negligence or misconduct in the performance of his duty to the
Registrant unless and only to the extent that the Court of Common Pleas
or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, that person is fairly and
reasonably entitled to indemnity for such expenses as the Court of
Common Pleas or the other court shall deem proper.
SECTION 3. Rights after Successful Defense. To the extent that a
director, trustee, officer, employee, or agent has been successful on
the merits or otherwise in defense of any action, suit, or proceeding
referred to in Section 1 or Section 2, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
SECTION 4. Other Determinations of Rights. Except in a situation
governed by Section 3, any indemnification under Section 1 or Section 2
(unless ordered by a court) shall be made by the Registrant only as
authorized in the specific case upon a determination that indemnication
of the director, trustee, officer, employee, or agent is proper in the
circumstances because he has met the applicable standard of conduct set
forth in Section 1 or Section 2. The determination shall be made (a) by
a majority vote, at a meeting of directors, of those directors who
constitute a quorum and who were not and are not parties to or
threatened with any such action, suit, or proceeding or (b), if such a
quorum is not obtainable (or even if obtainable) and a majority of
disinterested directors so directs, in a written opinion by independent
legal counsel (compensated by the Registrant) or (c) by the affirmative
vote in person or by proxy of the holders of record of a majorty of the
shares held by persons who were not and are not parties to or
threatened with any such action, suit, or proceeding and entitled to
vote in the election of directors, without regard to voting power which
may thereafter exist upon a default, failure, or other contingency or
(d) by the Court of Common Pleas or the court in which such action,
suit, or proceeding was brought.
SECTION 5. Advances of Expenses. Expenses (including attorneys' fees)
incurred in defending any action, suit, or proceeding referred to in
Section 1 or Section 2 may be paid by the Registrant in advance of
final disposition of the action, suit, or proceeding, as authorized by
the Board of Directors in the specific case, upon receipt of an
undertaking by or on behalf of the director, trustee, officer,
employee, or agent to repay the amount unless it shall ultimately be
determined that he is entitled to be indemnified by the Registrant.
<PAGE> 4
SECTION 6. Purchase of Insurance. The Registrant may purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee, or agent of the Registrant, or is or was serving at
the request of the Registrant as a director, trustee, officer,
employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise against any liability asserted against him
and incurred by him in any capacity, or arising out of his status as
such, whether or not the Registrant would have the power to indemnify
him against liability under the provisions of this Article or of the
Ohio General Corporation Law.
SECTION 7. Mergers. In the case of a merger into this Registrant of a
constituent corporation which, if its separate existence had continued,
would have been required to indemnify directors, trustees, officers,
employees, or agents in specified situations, any person who served as
a director, officer, employee, or agent of the constituent corporation,
or served at the request of the constituent corporation as a director,
trustee, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, shall be
entitled to indemnification by this Registrant (as the surviving
corporation) to the same extent he would have been entitled to
indemnification by the constituent corporation if its separate
existence had continued.
SECTION 8. Non-Exclusivity; Heirs. The indemnification provided by this
Article shall not be deemed exclusive of any other rights to which a
person seeking indemnification may be entitled as a matter of law or
under the Articles of Incorporation, these Regulations, any agreement,
vote of shareholders or disinterested directors, any insurance
purchased by the Registrant, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding an
office, and shall continue as to a person who has ceased to be a
director, trustee, officer, employee, or agent and shall inure to the
benefits of the heirs, executors, and administrators of such a person.
The Registrant maintains liability insurance for all of its Directors and
Officers ("D&O insurance"). This D&O insurance also insures the Registrant
against amounts payable to indemnify Directors and Officers, subject to policy
limits and retention amounts.
Item 7. Exemption From Registration Claimed
Not applicable
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
------- ----------------------------------------------------------------------
<S> <C>
4 1994 Executive Incentive Plan (Incorporated by reference to Exhibit A
to the Registrant's Proxy Statement for its Annual Meeting held on
June 27, 1994 - Commission File No. 1-6695)
5 Opinion of Jones, Day, Reavis & Pogue as to the legality of the
Common Shares being registered and its consent
23(a) Consent of Independent Public Accountants
23(b) Consent of Jones, Day, Reavis & Pogue (See Exhibit 5)
24 Power of Attorney
</TABLE>
<PAGE> 5
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment therof) 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) of
this section do not apply if the registration statement is on Form
S-3, Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to section 13 or section 15(d)
of the Securities Act of 1934 that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933 (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) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 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 therof.
(c) The undersigned Registrant hereby undertakes that, 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 provision,
or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act 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 the questions
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE> 6
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hudson, State of Ohio, on June 12, 1995.
FABRI-CENTERS OF AMERICA, INC.
By: /s/ Alan Rosskamm
-------------------------------------
Alan Rosskamm
President and Chief Executive 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
date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------- ---------------------------------- ------
<S> <C> <C>
/s/ Alan Rosskamm Chairman of the Board and Director
- --------------------- (Chief Executive Officer)
Alan Rosskamm
/s/Robert Norton* Vice Chairman and Director
- --------------------- (Chief Accounting Officer)
Robert Norton
/s/ Betty Rosskamm* Director
- ---------------------
Betty Rosskamm
/s/ Alma Zimmerman* Director
- ---------------------
Alma Zimmerman June 12, 1995
/s/ Scott Cowen* Director
- ---------------------
Scott Cowen
/s/ Ira Gumberg* Director
- ---------------------
Ira Gumberg
/s/ Samuel Krasney* Director
- ---------------------
Samuel Krasney
/s/ Frank Newman* Director
- ---------------------
Frank Newman
</TABLE>
The undersigned, by signing his name hereto, executes this Registration
Statement pursuant to a power of attorney executed by the above-named directors
and officers of the Registrant and filed with the Securities and Exchange
Commission as Exhibit 24 hereto.
* By: /s/ Alan Rosskamm
-------------------------------
Alan Rosskamm, Attorney-in-fact
<PAGE> 1
Exhibit 4
1994 Executive Incentive Plan
(Incorporated by reference to Exhibit A to the Registrant's Proxy Statement for
its Annual Meeting held on June 27, 1994 - Commission File No. 1-6695)
<PAGE> 1
Exhibit 5
Opinion and Consent of Jones, Day, Reavis & Pogue
<PAGE> 2
June 12, 1995
Fabri-Centers of America, Inc.
5555 Darrow Road
Hudson, Ohio 44236
RE: Fabri-Centers of America, Inc.
Executive Incentive Plan
Ladies and Gentlemen:
We have acted as counsel for Fabri-Centers of America, Inc., an Ohio corporation
(the "Company"), in connection with the Executive Incentive Plan of the Company
(the "Plan"). We have examined such documents, records and matters of law as we
have deemed necessary for purposes of this opinion, and based thereupon we are
of the opinion that the shares of Common Stock, without par value, of the
Company (the "Common Shares"), that may be issued pursuant to the Plan and any
agreements contemplated thereby (the "Agreements") are duly authorized and will
be, when issued in accordance with the Plan and the Agreements, validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the Form S-8
Registration Statement being filed by the Company to effect registration of the
500,000 Common Shares to be issued and sold pursuant to the Plan under the
Securities Act of 1933.
Very truly yours,
Jones, Day, Reavis and Pogue
<PAGE> 1
Exhibit 23(a)
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 1, 1995,
included in the Fabri-Centers of America, Inc. Form 10-K and Form 10-K/A for the
fiscal year ended January 28, 1995 and to all references to our Firm included in
this Registration Statement.
Arthur Andersen LLP
Cleveland, Ohio,
June 7, 1995.
<PAGE> 1
Exhibit 23 (b)
Consent of Jones, Day, Reavis & Pogue
(See Exhibit 5)
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Fabri-Centers of America, Inc.
Commission File No. 1-6695
Registration Statement of Form S-8
(1994 Executive Incentive Plan)
Gentlemen:
The undersigned directors and officers of Fabri-Centers of America, Inc., an
Ohio corporation which proposes to file a Registration Statement on Form S-8
with the Securities and Exchange Commission with respect to 500,000 shares of
Common Stock, without par value, of the Company to be offered pursuant to the
terms of the Fabri-Centers of America, Inc. 1994 Executive Incentive Plan,
hereby constitute and appoint Alan Rosskamm and Robert Norton, and each of
them, as their attorney, with full power of substitution and resubstitution,
for and in their name, place, and stead, to sign and file the proposed
Registration Statement and any and all amendments and exhibits thereto, and
any and all applications and other documents to be filed with the Securities
and Exchange Commission pertaining to such securities or such registration,
with full power and authority to do and perform any and all acts and things
whatsoever requisite and necessary to assure compliance by the person signing
with the Form S-8 Registration Statement filing requirements. The authority
confirmed herein shall remain in effect as to each of the undersigned until
such time as Securities and Exchange Commission shall receive from such person
a written communication terminating or modifying the authority.
<TABLE>
<CAPTION>
Date Date
------ ------
<S> <C> <C> <C>
/s/ Alan Rosskamm 6/8/95 /s/ Scott Cowen 6/8/95
- ------------------- ------ ------------------ ------
Alan Rosskamm Scott Cowen
/s/ Robert Norton 6/8/95 /s/ Ira Gumberg 6/8/95
- ------------------- ------ ------------------ ------
Robert Norton Ira Gumberg
/s/ Betty Rosskamm 6/8/95 /s/ Samuel Krasney 6/8/95
- ------------------- ------ ------------------ ------
Betty Rosskamm Samuel Krasney
/s/ Alma Zimmerman 6/8/95 /s/ Frank Newman 6/8/95
- ------------------- ------ ------------------ ------
Alma Zimmerman Frank Newman
</TABLE>
