<PAGE> 1
As filed with the Securities and Exchange Commission on August 13, 1996
Registration No. 333-______
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
1994 Executive Incentive Plan
- --------------------------------------------------------------------------------
(Full title of the plan)
Betty Rosskamm, Corporate Secretary
5555 Darrow Road, Hudson, Ohio 44236
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(216) 656-2600
- --------------------------------------------------------------------------------
(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 389,000 shares $14.69 $5,714,410 $1,970.49
Class B Common
Shares 429,000 shares $14.19 $6,087,510 $2,099.14
<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.
3
<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>
4.1 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)
5.1 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;
4
<PAGE> 5
(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.
5
<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 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
- ------------------------- August 13, 1996
Betty Rosskamm
/s/ Alma Zimmerman* Director
- ------------------------- August 13, 1996
Alma Zimmerman
/s/ Scott Cowen* Director
- ------------------------- August 13, 1996
Scott Cowen
/s/ Ira Gumberg* Director
- ------------------------- August 13, 1996
Ira Gumberg
/s/ Samuel Krasney* Director
- ------------------------- August 13, 1996
Samuel Krasney
/s/ Frank Newman* Director
- ------------------------- August 13, 1996
Frank Newman
/s/ Gregg Searle* Director
- ------------------------- August 13, 1996
Gregg Searle
</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.
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 5.1
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. 1994 Executive Incentive 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 1994 Executive Incentive Plan (the "1994 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 1994 Plan are duly authorized
and will be, when issued in accordance with the 1994 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 1994 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
(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 389,000 Class A
Common Shares, without par value, and 429,000 Class B Common Shares, 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 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/ Ira Gumberg July 23, 1996
- ----------------------- --------------------------
Alan Rosskamm Ira Gumberg
/s/ Robert R. Gerber July 26, 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 /s/ Gregg Searle July 26, 1996
- ---------------------- --------------------------
Alma Zimmerman Gregg Searle
/s/ Scott Cowen July 23, 1996
- ----------------------
Scott Cowen
</TABLE>
