<PAGE> 1
As filed with the Securities and Exchange Commission on August 13, 1996
Registration No. 333-______
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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)
Betty Rosskamm, Corporate Secretary
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>
Class A Common
Shares 1,977,798 shares $14.69 $29,053,853 $10,018.57
Class B Common
Shares 1,978,545 shares $14.19 $28,075,554 $ 9,681.22
<FN>
(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 Class A Common Share and Class B Common Share, respectively on the
New York Stock Exchange - Composite Transactions Tape on August 8, 1996.
(3) Estimated solely for the purpose of calculating the registration fee.
</TABLE>
<PAGE> 2
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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 for the fiscal year ended
January 27, 1996;
b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended April 27, 1996;
c) The descriptions of the Registrant's Class A Common Shares and Class B
Common Shares and rights to purchase Class A Common Shares and Class B
Common Shares 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.
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 the defense or
2
<PAGE> 3
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
interests 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
indemnification 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 majority 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.
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.
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<PAGE> 4
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> <C>
4.1 1990 Employees Stock Option and Stock Appreciation Rights Plan
5.1 Opinion of Jones, Day, Reavis & Pogue as to the legality of
the Class A Common Shares and Class B Common Shares being
registered and its consent
23.1 Consent of Independent Public Accountants
23.2 Consent of Jones, Day, Reavis & Pogue (See Exhibit 5.1)
24.1 Power of Attorney
</TABLE>
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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated offering range may be reflected in the
form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
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(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, 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 of
1933 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 Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 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 Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-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 August 13, 1996.
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) August 13, 1996
Alan Rosskamm
/s/ Robert R. Gerber* Senior Vice President
- ---------------------- (Chief Accounting Officer) August 13, 1996
Robert R. Gerber
/s/ Betty Rosskamm* Director
- ----------------------
Betty Rosskamm August 13, 1996
/s/ Alma Zimmerman* Director
- ----------------------
Alma Zimmerman August 13, 1996
/s/ Scott Cowen* Director
- ----------------------
Scott Cowen August 13, 1996
/s/ Ira Gumberg* Director
- ----------------------
Ira Gumberg August 13, 1996
/s/ Samuel Krasney* Director
- ----------------------
Samuel Krasney August 13, 1996
/s/ Frank Newman* Director
- ----------------------
Frank Newman August 13, 1996
/s/ Gregg Searle* Director
- ----------------------
Gregg Searle August 13, 1996
</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 24.1 hereto.
*By: /s/ Alan Rosskamm
------------------
Alan Rosskamm, Attorney-in-fact
6
<PAGE> 1
EXHIBIT 4.1
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: June 27, 1994
Amended: August 2, 1995
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 may be
<PAGE> 2
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 (as hereinafter defined)
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
value at the date of grant of the Shares for which options were granted to any
2
<PAGE> 3
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;
(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 inventive 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) No employee may be granted in any calendar year incentive stock
options, non-qualified stock-options, stock appreciation rights or any
combination of the foregoing which in the aggregate relate to greater than
100,000 Shares.
4. SHARES SUBJECT TO THE PLAN. The shares subject to the Plan shall be the
Company's Class A Common Shares, without par value (the "Class A Shares"), and
the Class B Common Shares, without par value ("Class B Shares" and together with
the Class A Shares, the "Shares"), which may be issued from 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 Class A Shares and 2,300,000 Class B Shares subject, however, to
adjustment as provided in Section 14. Options or stock appreciation rights
granted under the Plan may relate to the Class A Shares, Class B Shares or any
combination thereof. The Committee shall
3
<PAGE> 4
determine, at the time the options or stock appreciation rights are granted,
whether the options or stock appreciation rights shall relate to Class A Shares,
Class B Shares or any combination thereof. 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 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
the Class A Shares or Class
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<PAGE> 5
B Shares on any date shall be the mean between the high and low sale prices of
such Class A Shares or Class B Shares, as the case may be, 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 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 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 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
5
<PAGE> 6
outstanding for this purpose until the option is exercised in full, is
surrendered upon the exercise of related stock 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 or
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, the Shares then subject to the option
shall continue to be available
6
<PAGE> 7
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
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)
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<PAGE> 8
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 upon exercise of the option shall expire, on the
date determined by the Committee at the time 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 the 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.
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
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<PAGE> 9
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 Class A Shares, Class B Shares or a combination thereof
(each 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 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
9
<PAGE> 10
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 this intention to do so and, if 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 Class A Shares, Class
B Shares or any combination thereof (each taken at their fair market value on
the date of exercise, as defined in Section 5), or partly 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 Class A Shares, Class B
10
<PAGE> 11
Shares or any combination thereof to the Company, or by having the Company
retain a portion of the Shares 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 Shares 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
the assumption of the option or stock appreciation right, or accept a new option
or stock appreciation right in substitution thereof, 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
11
<PAGE> 12
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 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
12
<PAGE> 13
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 and with the requirements of any exchange on
which the Shares 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), shareholders
approval shall be required with respect to any amendment (i) increasing the
aggregate number of
13
<PAGE> 14
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 the eligibility or to administration of the Plan. Except in
accordance with 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
August 2, 1995 amendment did not require shareholder approval
14
<PAGE> 1
Exhibit 5.1
Opinion and Consent of Jones, Day, Reavis & Pogue
August 13, 1996
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
-----------------------------------------------
Dear Ladies and Gentlemen:
We have acted as special counsel for Fabri-Centers of America, Inc., an
Ohio corporation (the "Company"), in connection with the registration of the
Company's Class A Common Shares, without par value ("Class A Stock"), and Class
B Common Shares, without par value ("Class B Stock," together with Class A
Stock, the "Common Stock"), that may be issued or transferred and sold under the
Company's 1990 Employees Stock Option and Stock Appreciation Rights Plan, as
amended (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 shares of Common Stock that may be
issued pursuant to the 1990 Plan 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 5.1 to the
Form S-8 Registration Statement being filed by the Company to effect
registration of the Common Stock to be issued and sold pursuant to the 1990 Plan
under the Securities Act of 1933.
Very truly yours,
Jones, Day, Reavis & Pogue
<PAGE> 1
Exhibit 23.1
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 April 11, 1996,
included in the Fabri-Centers of America, Inc. Form 10-K for the fiscal year
ended January 27, 1996 and to all references to our firm in this
Registration Statement.
Arthur Andersen LLP
Cleveland, Ohio,
August 13, 1996.
<PAGE> 1
Exhibit 23.2
Consent of Jones, Day, Reavis & Pogue
(See Exhibit 5.1)
<PAGE> 1
Exhibit 24.1
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 1,977,798 Class A
Common Shares, without par value, and 1,978,545 Class B Common Shares, 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
R. Gerber, 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 July 23, 1996 /s/ Scott Cowen July 23, 1996
- ----------------------- ---------------------------
Alan Rosskamm Scott Cowen
/s/ Gregg Searle July 26, 1996 /s/ Ira Gumberg July 23, 1996
- ------------------------- ---------------------------
Gregg Searle Ira Gumberg
/s/ Robert R. Gerber July 23, 1996 /s/ Samuel Krasney July 26, 1996
- ------------------------ --------------------------
Robert R. Gerber Samuel Krasney
/s/ Betty Rosskamm July 23, 1996 /s/ Frank Newman July 23, 1996
- ------------------------ -------------------------
Betty Rosskamm Frank Newman
/s/ Alma Zimmerman July 23, 1996
- ------------------------
Alma Zimmerman
</TABLE>
