<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)
1990 Employees Stock Option and Stock Appreciation Rights 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
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<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 750,000 $20.06 $15,045,000 $5,187.97
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 1990 Employees Stock Option and Stock Appreciation
Rights Plan
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 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) 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 thereof.
(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
1990 Employees Stock Option and Stock Appreciation Rights Plan
<PAGE> 2
FABRI-CENTERS OF AMERICA, INC.
1990 EMPLOYEES STOCK OPTION AND
STOCK APPRECIATION RIGHTS PLAN
Effective: September 21, 1982
Amended: March 27, 1984
Amended: April 3, 1987
Amended: December 5, 1988
Amended: March 14, 1990
Amended: March 9, 1992
Amended: May 9, 1994
1. Purpose. This 1990 Employees Stock Option and Stock
Appreciation Rights Plan (the "Plan") is designed to enable Fabri-Centers of
America, Inc. (the "Company"), by the grant of options and stock appreciation
rights, to attract and retain key employees for the Company and its subsidiaries
and to provide additional incentive to those employees through increased stock
ownership. Options granted under the Plan may be (a) incentive stock options
within the meaning of Section 422A of the Internal Revenue Code of 1986, as
amended (the "Code"), (b) non-qualified stock options (all options other than
incentive stock options) or (c) any combination of the foregoing.
2. Administration. The Plan shall be administered by a committee
consisting of not less than three directors of the Company (the "Committee"), to
be appointed by, and to serve during the pleasure of, the Board of Directors of
the Company. No director who has within one year prior to service, or during the
course of service, on the Committee been granted or awarded securities of the
Company pursuant to the Plan or any other discretionary compensation or bonus
plan of the Company
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<PAGE> 3
may be appointed or serve as a member of the Committee. Subject to the terms of
the Plan, the Committee shall have full power and authority to interpret the
provisions and to supervise the administration of the Plan and to define the
terms of and grant options and stock appreciation rights under the Plan. The
Committee shall determine, at the time options are granted, whether the options
are incentive stock options, nonqualified options, or a combination thereof. All
decisions by the Committee pursuant to the provisions of the Plan shall be
final.
3. Employees Who May Participate in the Plan. Employees to whom
options or stock appreciation rights are granted shall be designated from time
to time by the Committee. An option may be granted to any key employee of the
Company or of a subsidiary, including any director or officer who is a key
employee, and a stock appreciation right may be granted to any key employee who
holds or is concurrently granted an option under the Plan. An employee may hold
more than one option or stock appreciation right; provided, however, that:
(a) for incentive stock options granted prior to January 1,
1987, no employee may be granted incentive stock option in any calendar year
(under all plans of the Company and its subsidiaries) for shares which exceed an
aggregate fair market value, determined as of the date of grant, of $100,000
plus any unused limit carryover to that year. The carryover amount from any
calendar shall be one-half of the amount by which $100,000 exceeds the
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<PAGE> 4
value at the date of grant of the shares of Common Stock for which options were
granted to any eligible employee in such year. Unused amounts may be carried
forward three years. Options granted in any year shall first use up the $100,000
current year limitation and next the unused carryovers in the chronological
order of the calendar years in which the carryovers arose; and
(b) for incentive stock options granted after December 31, 1986,
the aggregate fair market value (determined at the time the option is granted)
of the shares with respect to such incentive stock options which are exercisable
for the first time during any calendar year (under all plans of the Company and
its subsidiaries) shall not exceed $100,000; and
(c) the number of non-qualified options, SARs, and incentive
stock options which may be granted to an eligible employee during any calendar
year is limited to 100,000 shares.
4. Shares Subject to the Plan. The shares subject to the Plan
shall be shares of the Company's Common Stock, without par value, and may be
authorized but unissued shares or treasury shares. The total number of shares
that may be delivered upon the exercise of all options granted under the Plan
may not exceed 2,300,000, subject, however, to adjustment as provided in Section
14. Stock appreciation rights may be granted with respect to all or part of the
shares subject to an option granted under the Plan. When all or part of an
option is
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<PAGE> 5
surrendered upon exercise of the related stock appreciation rights, the shares
subject to the surrendered part of the option shall not be available for the
grant of future options under the Plan, and the number of shares that may be
delivered under the Plan shall be reduced accordingly. When, however, an option
is surrendered or expires for any reason other than the exercise of the related
stock appreciations rights, the shares subject to the option shall again become
available for offering under the Plan.
5. Option Price. The option price shall be determined by the
Committee or by the Board of Directors. In the case of incentive stock options,
the option price may not be less than 100% of the fair market value of the
shares subject to the option on the date the option is granted, except that, if
the optionee owns, at the time the option is granted, shares possessing more
than 10% of the total combined voting power of all classes of stock of the
Company or a subsidiary, the option price may not be less than 110% of the fair
market value of the shares on the date the option is granted. In no event may
previously unissued shares be issued at a price less than that permitted by the
Ohio General Corporation Law. For purposes of this Plan, the "fair market value"
of shares on any date shall be the mean between the high and low sale prices of
the shares as reported for New York Stock Exchange-Composite Transactions on
that date or, if no shares are traded on that date, the next preceding date on
which trading occurred. In the event that the shares cease
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<PAGE> 6
to be traded on the New York Stock Exchange, the "fair market value" of the
shares shall be determined in the manner prescribed by the Committee.
6. Exercise of Options. Except as otherwise provided in Section
7, or as may be permitted pursuant to options granted under Section 15, an
option may be exercised only while the optionee is in the employ of the Company
or of a subsidiary. No option granted under the Plan may be exercised prior to
the completion of one year of continuous employment after the date of grant,
unless an option is accelerated as provided in this Section 6, nor, under any
circumstances, later than the expiration date of the option. An option shall
become exercisable at such time or times, wholly or in such installments, as the
Committee may determine at the time the option is granted. No fraction of a
share of Common Stock may be purchased upon the exercise of an option. Incentive
stock options granted on or after April 3, 1987 may be exercised in any order
and may be exercised before the exercise of incentive stock options granted
before April 3, 1987. No incentive stock option granted prior to April 3, 1987
shall be exercisable while there is outstanding any incentive stock option
previously granted to the employee by the Company or by a parent, subsidiary, or
predecessor corporation. An option shall be treated as outstanding for this
purpose until the option is exercised in full, is surrendered upon the exercise
of related stock
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<PAGE> 7
appreciation rights, or expires by reason of the lapse of time.
In the event of a proposed merger or consolidation of the
Company into or with another corporation or a proposed sale of all or a
substantial part of the Company's assets and provision is not made pursuant to
the terms of such transaction for the assumption by the surviving, resulting or
acquiring corporation of outstanding options under the Plan, or for the
substitution of new options therefor, or in the event of a tender or exchange
offer for more than 25% of the Company's outstanding shares, or another
transaction or series of transactions that the Board determines is likely to
result in a change in control of the Company, the Board may accelerate the date
on which any outstanding option or any portion of an outstanding option becomes
exercisable. The Board shall give the optionee written notice of such
acceleration and the reasons therefor. The optionee may, but not more than 10
days prior to the effective date of the proposed transaction, exercise the
option to purchase any or all shares then subject to the option. Any such
exercise shall be conditioned upon the consummation of the transaction, and
shall become effective immediately prior to the consummation date. If the
transaction is consummated, each option, to the extent not previously exercised
prior to the date specified in the foregoing notice, shall terminate on the
effective date of such consummation. If the proposed transaction is abandoned,
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<PAGE> 8
the shares then subject to the option shall continue to be available for
purchase in accordance with the other provisions of the Plan and any
acceleration of the date on which any outstanding option, or part thereof,
become exercisable rescinded. In addition to the foregoing, the Committee may
authorize the purchase of stock options previously granted to any person who, at
the time of any such transaction, is a director or officer of the Company for a
price equal to the difference between the consideration per share payable
pursuant to the terms of the transaction and the option price.
7. Exercise of Options After Termination of Employment. No
option may be exercised after termination of the optionee's employment, except
in the following situations:
(a) If the termination of employment is due to retirement under
the applicable retirement plan or policy of the Company or a subsidiary, the
optionee shall have the right to exercise the option in whole or in part within
the period of three months after the date of the termination of his employment.
(b) Upon the termination of employment of an optionee due to
permanent and total disability or the death of an optionee while in the employ
of the Company or a subsidiary or within the three-month period referred to in
paragraphs (a) and (c) of this Section 7, the optionee or the optionee's estate,
personal representative or beneficiary shall have the right to exercise the
option in
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<PAGE> 9
whole or in part within one year after the date of such termination or the
optionee's death.
(c) If the termination of employment is due to any other reason
except the optionee's retirement as specified in (a) above or the optionee's
permanent and total disability or death as specified in (b) above, the optionee
may, provided that the Committee or the Board of Directors consents, exercise
the option in whole or in part within the period of three months after the date
of such termination of employment.
8. Termination of Options. An option granted under this Plan
shall terminate, and the right of the optionee (or his estate, personal
representative or beneficiary) to purchase shares upon exercise of the option
shall expire, on the date determined by the Committee at the time the option is
granted. Except as hereinafter provided in Section 19, no incentive stock option
and, prior to April 3, 1987, no non-qualified stock option may have a life of
more than ten years after the date it is granted, and in the case of an optionee
who owns, at the time the incentive stock option is granted, stock possessing
more than 10% of the total combined voting power of all classes of stock of the
Company or a subsidiary, no incentive stock option may have a life of more than
five years after the date it is granted. A non-qualified stock option granted on
or after April 3, 1987, may not have a life extending beyond the last day of the
fiscal year in which the tenth anniversary of the date of grant occurs.
-8-
<PAGE> 10
9. Grant of Stock Appreciation Rights. Stock appreciation rights
may be granted with respect to all or part of the shares subject to any option
granted under this Plan. The stock appreciation rights may be granted at the
time the option is granted or, in the case of a nonqualified option, at any time
during the life of the option. Each stock appreciation right shall entitle the
optionee, upon exercise of the stock appreciation right and surrender of all or
part of the related option, to receive an amount equal to 100%, or such lesser
percentage as the Committee may determine, of the excess of (i) the aggregate
fair market value on the date of exercise (as defined in Section 5) of the
shares subject to the surrendered part of the option over (ii) the aggregate
option price for the shares. This amount may be paid by the Company in cash, in
shares of the Company's Common Stock (taken at their fair market value on the
date of exercise, as defined in Section 5), or partly in cash and partly in
shares, as determined by the Committee from time to time.
10. Exercise of Stock Appreciation Rights. Stock appreciation
rights may be exercised only when the related option is exercisable and shall
expire upon termination of the option or at any earlier time determined by the
Committee at the time the stock appreciation rights are granted. Stock
appreciation rights granted with respect to shares subject to an incentive stock
option may be exercised, however, only if the fair market value of the
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<PAGE> 11
shares subject to the option exceeds the option price for the shares. Stock
appreciation rights that are held by a director or officer of the Company and
that are payable wholly or partly in cash may be exercised only (i) after the
expiration of six months following the date of grant, except in the event of
death or permanent and total disability, and (ii) during the period beginning on
the third business day following the date of release for publication by the
Company of quarterly or annual summary statements of sales and earnings and
ending on the twelfth business day thereafter.
11. Notice of Grant. When an employee is granted an option or
stock appreciation right under the Plan, the Committee shall promptly cause the
employee to be notified in writing of the nature of the grant and the terms of
the option or stock appreciation right. The date on which the Committee approves
the grant shall be considered to be the date on which the option or stock
appreciation right is granted.
12. Notice of Exercise; Payment for Shares. An option or stock
appreciation right shall be considered to be exercised when the optionee
notifies the Company in writing of his intention to do so and, in the case of an
option, tenders payment in full of the option price. Payment of the option price
may, at the election of the optionee, be made in cash, by delivery of shares of
the Company's Common Stock (taken at their fair market value on the date of
exercise, as defined in Section 5), or partly
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<PAGE> 12
in cash and partly in shares, unless otherwise determined by the Committee. An
optionee shall not have the right to vote or to receive dividends on shares
purchased upon exercise of an option until he has paid the option price in full.
12A. Withholding Tax Election. The Committee, in its discretion
and subject to such rules as the Committee may adopt, may permit an optionee to
satisfy, in whole or in part, any withholding tax obligation that may arise in
connection with the exercise of an option by delivering Common Stock to the
Company, or by having the Company retain a portion of the Common Stock subject
to the option, with a fair market value of up to the amount of the withholding
tax obligation. The fair market value of the Common Stock to be delivered or
retained shall be determined as of the date immediately preceding the date on
which the amount of the withholding tax obligation is determined.
13. Assignability. An option or stock appreciation right granted
under the Plan may not be transferred other than by will or by the laws of
descent and distribution and is exercisable during an optionee's lifetime only
by him. Each employee to whom an option or stock appreciation right is granted,
by accepting the option or stock appreciation right, agrees with the Company
that, in the event that the Company merges into or consolidates with another
corporation or the Company sells all or a substantial part of its assets, he
will consent to
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<PAGE> 13
the assumption of the option or stock appreciation right, or accept a new option
or stock appreciation right in substitution therefor, if the Committee or the
Board of Directors requests him to do so and the option is not otherwise
terminated in accordance with the provisions of Section 6.
14. Adjustments upon Changes in Shares. In the event of any
change in the shares subject to the Plan or to any option or stock appreciation
right granted under the Plan by reason of a merger, consolidation,
reorganization, recapitalization, stock dividend, stock split, exchange of
shares, or other change in the corporate structure of the Company, the aggregate
number of shares as to which options or stock appreciation rights may thereafter
be granted under the Plan, the number of shares subject to each outstanding
option and stock appreciation right, and the option price for shares subject to
each outstanding option shall be appropriately adjusted by the Committee.
15. Substitute Options or Stock Appreciation Rights. The Board
of Directors may grant options and stock appreciation rights in substitution
for, or upon the assumption of, options or stock appreciation rights granted by
another corporation that is merged into, consolidated with, or all or a
substantial part of the assets or stock of which is acquired by the Company or a
subsidiary. Subject to the limit in Section 4 on the number of shares that may
be delivered upon the exercise of
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<PAGE> 14
options granted under the Plan, the terms and provisions of any options
and stock appreciation rights granted under this Section 15 may vary from the
terms and provisions otherwise specified in the Plan and may, instead,
correspond to the terms and provisions of the options and stock appreciation
rights granted by the other corporation.
16. Purchase for Investment. Each employee receiving shares upon
exercise of an option or stock appreciation right may be required by the Company
to furnish a representation that he is acquiring the shares as an investment and
not with a view to distribution if the Company, in its sole discretion,
determines that the representation is required to ensure that the resale or
other disposition of the shares would not violate the Securities Act of 1933, as
amended (the "1933 Act"), or any applicable state securities laws. The Company
reserves the right to place any legend or other symbol on certificates for
shares delivered pursuant to the Plan, and to issue any stop transfer or similar
instructions to the transfer agent, that the Company deems necessary and proper
to assure compliance with any such representation.
17. Compliance with Securities Laws. No certificate for shares
shall be delivered upon exercise of an option or stock appreciation right until
the Company has taken any action that is required to comply with the provisions
of the 1933 Act, the Securities Exchange Act of 1934, as amended, and any
applicable state securities laws
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<PAGE> 15
and with the requirements of any exchange on which the Company's Common Stock
may, at the time, be listed.
18. Duration and Termination of the Plan. The Plan shall remain
in effect until March 14, 2000, and shall then terminate, unless terminated at
an earlier date by action of the Board of Directors. Except as provided in
Section 20, termination of the Plan shall not affect options or stock
appreciation rights previously granted.
19. Amendment of the Plan; Amendment of Outstanding Options. The
Board of Directors may alter or amend the Plan from time to time prior to its
termination without approval of the shareholders, except that, to the extent
such approval may be necessary under applicable securities laws and the rules
and regulations thereunder or under the rules of the New York Stock Exchange (or
any other exchange or market on which the Company's shares are traded),
shareholder approval shall be required with respect to any amendment (i)
increasing the aggregate number of shares with respect to which options or stock
appreciation rights may be granted (except in accordance with the provisions of
Section 14), (ii) reducing the option price at which options may be exercised
(except in accordance with the provisions of Section 14), (iii) extending the
time within which options or stock appreciation rights may be granted or the
time within which an option or stock appreciation right may be exercised, or
(iv) changing the requirements relating to eligibility or to administration of
the Plan. Except in accordance with
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<PAGE> 16
the provisions of Section 14, the Board of Directors may not, without the
consent of the holder of the option or stock appreciation right, alter or impair
any outstanding option or stock appreciation right previously granted under the
Plan.
20. Effective Date. The Plan was adopted by the Board of
Directors and became effective on September 21, 1982.
Amendments:
Approved by the shareholders on June 6, 1983
Amendment approved by the shareholders on June 4, 1984
Amendment approved by the shareholders on June 1, 1987
December 1988 amendment did not require shareholder approval
Amendment approved by the shareholders on June 4, 1990
Amendment approved by the shareholders on May 21, 1992
Amendment approved by the shareholders on June 27, 1994
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<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.
1990 Employees Stock Option and
Stock Appreciation Rights Plan
Ladies and Gentlemen:
We have acted as counsel for Fabri-Centers of America, Inc., an Ohio corporation
(the "Company"), in connection with the 1994 amendment (the "1994 Amendment") of
the 1990 Employees Stock Option and Stock Appreciation Rights Plan of the
Company as amended (the "1990 Plan"), to increase by 750,000 the number of
shares of Commons Stock, without par value, of the Company (the "Common Shares")
that may be issued or transferred and sold under the 1990 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
additional 750,000 Common Shares that may be issued pursuant to the 1994
Amendment are duly authorized and will be, when issued in accordance with the
1990 Plan and any agreements contemplated thereby, 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
additional 750,000 Common Shares to be issued and sold pursuant to the 1994
Amendment 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
(1990 Employees Stock Option and
Stock Appreciation Rights 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 750,000 shares of
Common Stock, without par value, of the Company to be offered pursuant to the
terms of the Fabri-Centers of America, Inc. 1990 Employees Stock Option and
Stock Appreciation Rights 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>
/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>
