As filed on August 4, 2003
Registration No. 333-
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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ABERCROMBIE & FITCH CO.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 31-1469076
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(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
6301 Fitch Path, New Albany, Ohio 43054
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(Address of Principal Executive Offices) (Zip Code)
ABERCROMBIE & FITCH CO. 2003 STOCK PLAN FOR NON-ASSOCIATE DIRECTORS
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(Full Title of the Plan)
Copy to:
SETH R. JOHNSON
Executive Vice President-Chief Elizabeth Turrell Farrar, Esq.
Operating Officer
Abercrombie & Fitch Co. Vorys, Sater, Seymour and Pease LLP
6301 Fitch Path 52 East Gay Street, P.O. Box 1008
New Albany, Ohio 43054 Columbus, Ohio 43216-1008
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(Name and Address of Agent for Service)
(614) 283-6500
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(Telephone Number, including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Securities Amount to be Proposed Maximum Aggregate Offering Amount of
to be Registered(1) Registered Offering Price Per Share(2) Price(2) Registration Fee
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Class A Common Stock, 550,000 shares $27.01 for 20,000 shares; $17,622,100 $1,426
$.01 par value $32.23 for
530,000 shares
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(1)This Registration Statement also covers related Series A Participating
Cumulative Preferred Stock Purchase Rights (the "Rights") which evidence the
right to purchase under certain conditions, one one-thousandth of a share of
Series A Participating Cumulative Preferred Stock, $.01 par value. Registrant is
required to deliver .50 Right, subject to adjustment, with each share of Class A
Common Stock that becomes outstanding until the "distribution date" for the
Rights, at which date the Rights will commence trading separately from the
shares of Class A Common Stock.
(2)Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and (h) under the Securities Act of 1933, as amended,
and computed on the basis of (a) $27.01 for 20,000 of the shares to be
registered, the price at which options to purchase such shares may be exercised;
and (b) $32.23 for 530,000 of the shares to be registered, the average of the
high and low sales prices reported on the New York Stock Exchange on July 31,
2003.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Abercrombie & Fitch Co. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents filed by the
Registrant with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
February 1, 2003.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended May 3, 2003.
(c) The Registrant's Current Report on Form 8-K, dated July 22, 2003 and
filed with the Commission on July 23, 2003.
(d) The description of the Registrant's Class A Common Stock, $.01 par
value, included in the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended August 3, 2002.
(e) The description of the Registrant's Series A Participating Cumulative
Preferred Stock Purchase Rights set forth in the Registrant's Form 8-A/A
(Amendment No. 2) dated September 19, 2001 and filed with the Commission on that
date, amending the Registrant's Registration Statement on Form 8-A, dated July
21, 1998 and filed with the Commission on that date, as previously amended by
Amendment No. 1 thereto, dated April 23, 1999 and filed with the Commission on
April 26, 1999.
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
Securities Exchange Act of 1934, as amended, and before the filing of a
post-effective amendment which indicates that all securities offered hereunder
pursuant to the Abercrombie & Fitch Co. 2003 Stock Plan for Non-Associate
Directors 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.
Information furnished or provided by the Registrant under Item 9 or Item 12 of
any of the Registrant's Current Reports on Form 8-K is not incorporated by
reference in this Registration Statement on Form S-8. The Registrant furnished
information under Item 9 of the Registrant's Current Report on Form 8-K to the
Commission on each of February 12, 2003 (which also included an exhibit
furnished under Item 7), May 8, 2003 (which also included an exhibit furnished
under Item 7), May 13, 2003 (the information being furnished was also deemed
provided under Item 12 and included an exhibit furnished under Item 7), June 5,
2003 (which also included an exhibit furnished under
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Item 7), July 10, 2003 (which also included an exhibit furnished under Item 7),
and July 11, 2003 (which also included an exhibit furnished under Item 7).
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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 or she 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
or her 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 or she 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 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 Amended and Restated Bylaws provide generally that the
Registrant is to 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 Amended
and Restated Bylaws also provide that indemnification thereunder is not
exclusive, and the Registrant may agree to indemnify any person as provided
therein.
The Registrant's Amended and Restated Certificate of Incorporation
provides that directors of the Registrant will not be held personally liable to
the Registrant or its stockholders for monetary damages arising from certain
breaches of their fiduciary duties. The provisions do 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
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any director or officer, subject to the conditions and exclusions of the
policies and specified deductible provisions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index beginning on page 8.
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; and
(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
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this 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.
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(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. 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 provisions described in Item 6
of this Part II, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New Albany, State of Ohio, on August 4, 2003.
ABERCROMBIE & FITCH CO.
By /s/ Seth R. Johnson
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Seth R. Johnson,
Executive Vice President-Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on August 4, 2003.
Signature Title
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* Chairman of the Board of Directors and Chief
-------------------------------- Executive Officer (Principal Executive
Michael S. Jeffries Officer)
/s/ Seth R. Johnson Executive Vice President-Chief Operating
-------------------------------- Officer (Principal Financial and Accounting
Seth R. Johnson Officer) and Director
* Director
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James B. Bachman
* Director
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Lauren J. Brisky
* Director
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Russell M. Gertmenian
* Director
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John A. Golden
* Director
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Archie M. Griffin
* Director
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John W. Kessler
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* Director
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Sam N. Shahid, Jr.
* Director
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Kathryn D. Sullivan, Ph.D.
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*Seth R. Johnson, by signing his name hereto, signs this document on
behalf of each of the individuals identified above pursuant to a power of
attorney duly executed by each such individual and filed with the Securities and
Exchange Commission.
By /s/ Seth R. Johnson
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Seth R. Johnson, Attorney-in-Fact
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EXHIBIT INDEX
The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Description
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4.1 Amended and Restated Certificate of Incorporation of the
Registrant as filed with the Delaware Secretary of State on August
27, 1996, incorporated by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended November 2, 1996. (File No. 1-12107)
4.2 Certificate of Designation of Series A Participating Cumulative
Preferred Stock of the Registrant as filed with the Delaware
Secretary of State on July 21, 1998, incorporated by reference to
Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended January 30, 1999. (File No. 1-12107)
4.3 Certificate of Decrease of Shares Designated as Class B Common
Stock of the Registrant as filed with the Delaware Secretary of
State on July 30, 1999, incorporated by reference to Exhibit 3.3
to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended July 31, 1999. (File No. 1-12107)
4.4 Amended and Restated Bylaws of the Registrant, effective January
31, 2002, incorporated by reference to Exhibit 3.4 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
February 2, 2002. (File No. 1-12107)
4.5 Rights Agreement, dated as of July 16, 1998, between the
Registrant and First Chicago Trust Company of New York, as Rights
Agent, incorporated by reference to Exhibit 1 to the Registrant's
Registration Statement on Form 8-A dated July 21, 1998. (File No.
1-12107)
4.6 Amendment No. 1 to Rights Agreement, dated as of April 21, 1999,
between the Registrant and First Chicago Trust Company of New
York, as Rights Agent, incorporated by reference to Exhibit 2 to
the Registrant's Amendment No. 1 to Form 8-A dated April 23, 1999.
(File No. 1-12107)
4.7 Certificate of adjustment of number of Rights associated with each
share of Class A Common Stock, dated May 27, 1999, incorporated by
reference to Exhibit 4.6 to the Registrant's Quarterly Report on
Form 10-Q for the quarterly period ended July 31, 1999. (File No.
1-12107)
4.8 Appointment and Acceptance of Successor Rights Agent, effective as
of the opening of business on October 8, 2001, between the
Registrant and National City Bank, incorporated by reference to
Exhibit 4.6 to the Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended August 4, 2001. (File No. 1-12107)
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10.1 Abercrombie & Fitch Co. 2003 Stock Plan for Non-Associate
Directors, incorporated by reference to Exhibit 10.10 to the
Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended May 3, 2003 (File No. 1-12107).
15.1 Letter re: Unaudited Interim Financial Information to Securities
and Exchange Commission re: Inclusion of Report of Independent
Accountants.*
23.1 Consent of Independent Accountants.*
24.1 Powers of Attorney Executed by Directors and Certain Executive
Officers of Abercrombie & Fitch Co.*
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* Filed herewith.
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