-----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, OwlQ8AiU8G1CwkZfu/y6fST1mx/XKcrwTIxPdBsWO+DrFTv7iIZipN66zuVAIit7 Hn0qWmXdNF33w2EUs1EPZw== 0000950152-96-004086.txt : 19960814 0000950152-96-004086.hdr.sgml : 19960814 ACCESSION NUMBER: 0000950152-96-004086 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960813 EFFECTIVENESS DATE: 19960901 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FABRI CENTERS OF AMERICA INC CENTRAL INDEX KEY: 0000034151 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-MISCELLANEOUS SHOPPING GOODS STORES [5940] IRS NUMBER: 340720629 STATE OF INCORPORATION: OH FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-10087 FILM NUMBER: 96610697 BUSINESS ADDRESS: STREET 1: 5555 DARROW RD CITY: HUDSON STATE: OH ZIP: 44236 BUSINESS PHONE: 2166562600 MAIL ADDRESS: STREET 1: 5555 DARROW ROAD CITY: HUDSON STATE: OH ZIP: 44236 FORMER COMPANY: FORMER CONFORMED NAME: CLEVELAND FABRIC SHOPS INC DATE OF NAME CHANGE: 19681216 FORMER COMPANY: FORMER CONFORMED NAME: CLEVELAND FABRIC SHOPS INC NUMBER THREE DATE OF NAME CHANGE: 19681216 S-8 1 FABRI-CENTERS 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) 1990 Employees Stock Option and Stock Appreciation Rights 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 ================================================================================
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 - ------------- ---------- ------------ --------- ------- 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 (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.
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 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 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 - -----------------
Exhibit Number Description ------ -------------------------------------------------------------- 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
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 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 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.
Signature Title Date --------- ----- ---- /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
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 EX-4.1 2 EXHIBIT 4.1 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 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 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 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 4 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 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 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) 7 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 8 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 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 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 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 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 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 EX-5.1 3 EXHIBIT 5.1 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 EX-23.1 4 EXHIBIT 23.1 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. EX-23.2 5 EXHIBIT 23.2 1 Exhibit 23.2 Consent of Jones, Day, Reavis & Pogue (See Exhibit 5.1) EX-24.1 6 EXHIBIT 24.1 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.
Date Date ---- ---- /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
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