-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MMnWbjXVRhnKUXWV+nxg47xHXIj4zNZ/13Ifn/lmhG5dDtJ2qrbPIvnhE+gpM0qP UB9puG2zFVjn+G57xgAzTw== 0000950137-98-002909.txt : 19980803 0000950137-98-002909.hdr.sgml : 19980803 ACCESSION NUMBER: 0000950137-98-002909 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980730 EFFECTIVENESS DATE: 19980730 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ABERCROMBIE & FITCH CO /DE/ CENTRAL INDEX KEY: 0001018840 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-FAMILY CLOTHING STORES [5651] IRS NUMBER: 311469076 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-60203 FILM NUMBER: 98674314 BUSINESS ADDRESS: STREET 1: FOUR LIMITED PARKWAY EAST CITY: REYNOLDSBURG STATE: OH ZIP: 43068 BUSINESS PHONE: 6145776500 MAIL ADDRESS: STREET 1: FOUR LIMITED PARKWAY EAST CITY: COLUMBUS STATE: OH ZIP: 43068 S-8 1 S-8 REGISTRATION STATEMENT 1 As filed on July 30, 1998 Registration No. ___-_____ - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------------------------------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ABERCROMBIE & FITCH CO. ----------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Its Charter) Delaware 31-1469076 - ------------------------------- ----------------------------------- (State or Other Jurisdiction of (IRS Employer Identification No.) Incorporation or Organization) Four Limited Parkway East, Reynoldsburg, Ohio 43068 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) ABERCROMBIE & FITCH CO. SAVINGS AND RETIREMENT PLAN --------------------------------------------------- ABERCROMBIE & FITCH CO. ASSOCIATE STOCK PURCHASE PLAN ----------------------------------------------------- (Full Title of the Plans) SETH R. JOHNSON Vice President and Chief Financial Officer Abercrombie & Fitch Co. Four Limited Parkway East Reynoldsburg, Ohio 43068 (614) 577-6500 ------------------------------------------------------------- (Name, Address and Telephone Number of Agent for Service) CALCULATION OF REGISTRATION FEE
========================================================================================================= Proposed Maximum Proposed Maximum Title of Securities Amount to be Offering Price per Aggregate Offering Amount of to be Registered(1) Registered(2) Share(3) Price(3) Registration Fee - --------------------------------------------------------------------------------------------------------- Class A Common Stock, $.01 par value 500,000 shares $45.59375 $22,796,875 $6,725.08 =========================================================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plans described herein. (2) Of this number, 250,000 shares are being registered for issuance under the Savings and Retirement Plan and 250,000 shares are being registered for issuance under the Associate Stock Purchase Plan. (3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended, based upon the average of the high and low prices reported in the New York Stock Exchange consolidated reporting system as of July 28, 1998. ------------------------------------------ 2 PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT Item 3. Incorporation of Documents By Reference. The Registrant hereby incorporates by reference into this Registration Statement the following documents: (a) The Registrant's Annual Report on Form 10-K for its fiscal year ended January 31, 1998. (b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended May 2, 1998. (c) The description of the Registrant's Class A Common Stock, $.01 par value, set forth in the Registrant's Amendment No. 2 to Registration Statement on Form S-1, filed with the Commission on August 28, 1996 ("Common Stock") and incorporated by reference in the Registrant's Registration Statement on Form 8-A filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on August 29, 1996. All documents filed by the Registrant with the Commission after the date of this Registration Statement under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, and before the filing of a post-effective amendment which indicates that all securities offered hereunder pursuant to the Plans have been sold or which deregisters all securities then remaining unsold, will be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. Not Applicable. Item 5. Interests of Named Experts and Counsel. The validity of the issuance of the shares of Class A Common Stock of the Registrant being registered on this Registration Statement on Form S-8 will be passed upon for the Registrant by Vorys, Sater, Seymour and Pease LLP, 52 East Gay Street, P.O. Box 1008, Columbus, Ohio 43216-1008. Douglas L. Williams, a director of the Registrant, is a partner in such firm. As of July 6, 1998, members of Vorys, Sater, Seymour and Pease LLP and attorneys employed thereby, together with members of their immediate families, beneficially owned an aggregate of 1,300 shares of Class A Common Stock of the Registrant. Item 6. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law provides for indemnification of directors and officers against any legal liability (other than liability arising from derivative suits) if the officer or director acted in good faith and in a manner that he reasonably believed to be in or not opposed to the best interests of the corporation. In criminal actions, the officer or director must also have had no reasonable cause to believe that his conduct was unlawful. A corporation may indemnify an officer or director in a derivative suit if the officer or director acted in good faith and in a manner that he reasonably believed to be in or not opposed to the best interest of the corporation unless the officer or director is found liable to the corporation. However, if the Court of Chancery or the court in which such action or suit was brought determines that the officer or director is fairly and reasonably entitled to 2 3 indemnity, then the Court of Chancery or such other court may permit indemnity for such officer or director to the extent it deems proper. The Registrant's Bylaws provide generally that the Registrant shall indemnify its present and past directors and officers to the fullest extent permitted by the laws of Delaware as they may exist from time to time. Directors and officers of the Registrant and its subsidiaries are indemnified generally against expenses actually and reasonably incurred in connection with proceedings, whether civil or criminal. The Registrant's Bylaws also provide that indemnification thereunder is not exclusive, and the Registrant may agree to indemnify any person as provided therein. The Registrant is a party to indemnification agreements with its directors and officers. The Registrant's Amended and Restated Certificate of Incorporation provides that directors of the Registrant shall not be held personally liable to the Registrant or its stockholders for monetary damages arising from certain breaches of their fiduciary duties. The provision does not insulate directors from personal liability for (i) breaches of their duty of loyalty to the Registrant or its stockholders, (ii) acts or omissions not taken in good faith or that involve intentional misconduct or knowing violation of law, (iii) transactions in which the director derives any improper personal benefit or (iv) unlawfully voting to pay dividends or to repurchase or redeem stock. The Registrant maintains insurance policies providing for indemnification of directors and officers and for reimbursement to the Registrant for monies which it may pay as indemnity to any director or officer, subject to the conditions and exclusions of the policies and specified deductible provisions. The Abercrombie & Fitch Co. Savings and Retirement Plan provides for indemnification by the Registrant of the members of such plan's administrative committee for costs, expenses and liabilities incurred by such members in connection with their service as a member of such committee, subject to the conditions and exceptions set forth in such plan. Seth R. Johnson, an officer and director of the Registrant, is a member of such plan's administrative committee. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. See Exhibit Index on page 7. The Registrant undertakes to submit the Abercrombie & Fitch Co. Savings and Retirement Plan to the Internal Revenue Service in a timely manner and to make all changes required by the Internal Revenue Service in order to qualify the Plan under Section 401(a) of the Internal Revenue Code. Item 9. Undertakings. (a) Rule 415 Offering. The Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the "Securities Act"); 3 4 (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) Filings Incorporating Subsequent Exchange Act Documents by Reference. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report under Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report under Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (h) Filing of Registration Statement on Form S-8. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 5 SIGNATURES The Registrant Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Reynoldsburg, State of Ohio, on July 29, 1998. ABERCROMBIE & FITCH CO. (The Registrant) By /s/ Seth R. Johnson ------------------------- Seth R. Johnson, Vice President and Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on July 29, 1998. Signature Title - --------- ----- * - ------------------------ Michael S. Jeffries Chairman of the Board of Directors and Chief Executive Officer (Principal Executive Officer) /s/ Seth R. Johnson - ------------------------ Vice President and Chief Financial Officer Seth R. Johnson and Director (Principal Financial and Accounting Officer) * - ------------------------ Director George Foos * - ------------------------ Director John A. Golden * - ------------------------ Director John W. Kessler * - ------------------------ Director Sam N. Shahid, Jr. * - ------------------------ Director Douglas L. Williams 5 6 *Seth R. Johnson, by signing his name hereto, signs this document on behalf of the persons indicated above pursuant to powers of attorney duly executed by such persons. By /s/ Seth R. Johnson -------------------- Seth R. Johnson, Attorney-in-Fact The Plans Pursuant to the requirements of the Securities Act of 1933, the administrator of the Abercrombie & Fitch Co. Savings and Retirement Plan and the Abercrombie & Fitch Co. Associate Stock Purchase Plan have duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Reynoldsburg, State of Ohio, on July 29, 1998. ABERCROMBIE & FITCH CO. SAVINGS AND RETIREMENT PLAN By: /s/ Seth R. Johnson ------------------------------------- Seth R. Johnson, Chairman of the Benefits Administrative Committee ABERCROMBIE & FITCH CO. ASSOCIATE STOCK PURCHASE PLAN By: /s/ Seth R. Johnson ------------------------------------- Seth R. Johnson, Chairman of the Benefits Administrative Committee 6 7 EXHIBIT INDEX The following exhibits are filed as part of this Registration Statement: Exhibit 4.1 Amended and Restated Certificate of Incorporation of the Registrant incorporated by reference to Exhibit 3.1 of the Registrant's quarterly report on Form 10-Q for the quarter ended November 2, 1996. 4.2 Form of Bylaws of the Registrant incorporated by reference to Exhibit 3.1 of the Registrant's quarterly report on Form 10-Q for the quarter ended November 2, 1996. 5.1 Legal opinion of Vorys, Sater, Seymour and Pease LLP. 15.1 Letter of PricewaterhouseCoopers LLP regarding Unaudited Interim Financial Information. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Vorys, Sater, Seymour and Pease LLP. (included in the opinion filed as Exhibit 5.1). 24.1 Power of Attorney. 7 EX-5.1 2 OPINION OF VORYS, SATER 1 EXHIBIT 5.1 [LETTERHEAD OF VORYS, SATER, SEYMOUR AND PEASE LLP] (614) 464-6400 July 30, 1998 Abercrombie & Fitch Co. Four Limited Parkway East Reynoldsburg, OH 43068 Re: Form S-8 Registration Statement under the Securities Act of 1933 for the Abercrombie & Fitch Co. Associate Stock Purchase Plan and the Abercrombie & Fitch Co. Savings and Retirement Plan Ladies and Gentlemen: We have acted as counsel for Abercrombie & Fitch Co., a Delaware corporation (the "Company"), in connection with the proposed issuance by the Company of up to 500,000 shares of the Company's Class A Common Stock, par value $.01 per share (the "Common Stock"), under the Abercrombie & Fitch Co. Associate Stock Purchase Plan and the Abercrombie & Fitch Co. Savings and Retirement Plan (collectively, the "Plans"), which Common Stock is being registered under the Securities Act of 1933 (the "Act") on a Registration Statement on Form S-8 (the "Registration Statement"). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K of the General Rules and Regulations promulgated under the Act (the "Rules and Regulations"). In connection with the preparation of this opinion, we have examined an original or copy of and have relied upon the accuracy of, without independent verification or investigation: (1) The Registration Statement filed with the Securities and Exchange Commission through the EDGAR system under the Act on the date hereof. 2 Abercrombie & Fitch Co. July 30, 1998 Page 2 (2) The Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws of the Company, each as currently in effect. (3) The Plans. (4) The resolutions adopted by the Company's Board of Directors relating to the issuance of the Common Stock and the approval of the Plans. (5) Such other records, documents or instruments as in our judgment are necessary or appropriate to enable us to render the opinions herein. In our examinations and in rendering the opinion set forth below, we have assumed, without independent investigation or examination, (a) the genuineness of all signatures, the authenticity and completeness of all documents submitted to us as copies and the authenticity of such originals of such latter documents; and (b) that the final, executed copy of each document submitted to us in draft form will not differ in any material respect from the draft form of such document submitted to us. As to the facts material to our opinion expressed herein which were not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of the Company. Based upon and subject to the foregoing, and the further qualifications and limitations set forth below, as of the date hereof, we are of the opinion that the 500,000 shares of Common Stock to be issued under the terms of the Plans are duly authorized and, when issued in accordance with the terms and conditions of the Plans, will be validly issued, fully paid and nonassessable. This opinion is furnished by us solely for the benefit of the Company in connection with the offering of the securities of the Company pursuant to the Plans and the filing of the Registration Statement and any amendments thereto. This opinion may not be relied upon by any other person or assigned, quoted or otherwise used without our specific written consent. We are members of the Bar of the State of Ohio and do not purport to be experts in the laws of any jurisdiction other than the laws of the State of Ohio and the United States of America; except that for purposes of this opinion, we have reviewed the General Corporation Law of the State of Delaware. We hereby consent to the filing of this opinion as Exhibits 5.1 and 23.2 to the Registration Statement and to the reference to us in the Registration Statement. By giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations. Very truly yours, VORYS, SATER, SEYMOUR AND PEASE LLP ETF:i EX-15.1 3 FINANCIAL INFORMATION 1 EXHIBIT 15.1 [LETTERHEAD OF PRICEWATERHOUSECOOPERS LLP] Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: Abercrombie & Fitch Co. We are aware that our report dated May 7, 1998 on our review of interim consolidated financial information of Abercrombie & Fitch Co. and Subsidiaries (the "Company") for the thirteen-week period ended May 2, 1998 and included in the Company's quarterly report on Form 10-Q for the period then ended, is incorporated by reference in this registration statement on this Form S-8. Pursuant to Rule 436(c) under the Securities Act of 1933, this report should not be considered a part of the registration statement prepared or certified by us within the meaning of Sections 7 and 11 of that Act. PricewaterhouseCoopers LLP Columbus, Ohio July 29, 1998 EX-23.1 4 CONSENT OF INDEPENDENT ACCOUNTANTS 1 EXHIBIT 23.1 [LETTERHEAD OF PRICEWATERHOUSECOOPERS LLP] CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this registration statement of Abercrombie & Fitch Co. on this Form S-8 of our report dated February 20, 1998, and our audits of the consolidated financial statements of Abercrombie & Fitch Co. as of January 31, 1998 and February 1, 1997, and for the fiscal years ended January 31, 1998, February 1, 1997, and February 3, 1996. PricewaterhouseCoopers LLP Columbus, Ohio July 29, 1998 EX-24.1 5 POWER OF ATTORNEY 1 EXHIBIT 24.1 POWER OF ATTORNEY FOR OFFICERS AND DIRECTORS OF ABERCROMBIE & FITCH CO. Pursuant to the requirements of the Securities Act of 1933, the undersigned officers and/or directors of Abercrombie & Fitch Co., a Delaware corporation (the "Company"), hereby appoint Seth R. Johnson as attorney-in-fact with full power of substitution and resubstitution to sign for the undersigned and in the name of the undersigned in any and all capacities with respect to the registration on Form S-8 of 500,000 shares of the Company's Class A Common Stock under the Abercrombie & Fitch Co. Associate Stock Purchase Plan and the Abercrombie & Fitch Co. Savings and Retirement Plan (the "Registration Statement") with the Securities and Exchange Commission ("SEC"), and to sign any and all amendments (including post-effective amendments) thereto and any and all applications or other documents to be filed with the SEC pertaining to the Registration Statement, and to grant unto the attorney-in-fact and agent the full power and authority to do and perform each and every act and thing required to be done, as fully to all intents and purposes as the undersigned could do if personally present. The undersigned hereby ratifies and confirms all that the attorney-in-fact and agent or his substitutes may lawfully do or cause to be done by virtue hereof.
Signatures Title Date - ---------- ----- ---- /s/ Michael S. Jeffries Chairman of the Board July 16, 1998 - ----------------------- and Chief Executive Officer Michael S. Jeffries (Principal Executive Officer) /s/ George Foos Director July 16, 1998 - ----------------------- George Foos /s/ John A. Golden Director July 16, 1998 - ----------------------- John A. Golden /s/ John W. Kessler Director July 16, 1998 - ----------------------- John W. Kessler /s/ Sam N. Shahid, Jr. Director July 16, 1998 - ----------------------- Sam N. Shahid, Jr. /s/ Douglas L. Williams Director July 16, 1998 - ----------------------- Douglas L. Williams
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