As filed with the Securities and Exchange Commission on November 7, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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HARTMARX CORPORATION
(Exact name of registrant as specified in its charter)
-----------------------------
DELAWARE 36-3217140
(State of incorporation) (I.R.S. employer identification number)
101 NORTH WACKER DRIVE
CHICAGO, ILLINOIS 60606
(Address of principal executive offices) (Zip code)
1998 INCENTIVE STOCK PLAN
(FULL TITLE OF THE PLAN)
TARAS R. PROCZKO
VICE PRESIDENT, CORPORATE COUNSEL AND SECRETARY
HARTMARX CORPORATION
101 NORTH WACKER DRIVE
CHICAGO, ILLINOIS 60606
(312) 357-5300
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
-----------------------------
WITH COPY TO:
BRIAN W. DUWE, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM (ILLINOIS)
333 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60606
(312) 407-0700
-----------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered per Share (2) Price Fee (3)
-----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 2,563,011 (1) $2.69 $6,894,500 $1,821
par value $2.50 per share
==================================================================================================================
(1) This Registration Statement also covers the stock purchase rights (the
"Rights") of the Registrant which are presently attached to and trade
with the Common Stock of the Registrant. Any value attributable to the
Rights is reflected in the market price of the Common Stock. Such
additional securities are also being registered hereby as may become
issuable under the 1998 Incentive Stock Plan (the "Plan") as a result
of applicable anti-dilution provisions.
(2) In accordance with Rules 457(c) and (h) under the Securities Act of
1933, as amended (the "Securities Act"), estimated solely for the
purpose of calculating the registration fee, the maximum offering
price per share is based on the average of the high and low sale
prices for a share of Common Stock on the Composite Tape of the New
York Stock Exchange on November 3, 2000.
(3) The registration fee has been calculated pursuant to Section 6(b) of
the Securities Act as follows: 0.0264% of $6,894,500, the proposed
maximum aggregate offering price (as computed in accordance with Rule
457 under the Securities Act solely for the purpose of determining the
registration fee of the securities registered hereby).
In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plan described herein.
</TABLE>
STATEMENT UNDER GENERAL INSTRUCTION E -
REGISTRATION OF ADDITIONAL SECURITIES
Pursuant to General Instruction E of Form S-8, this Registration
Statement is filed solely to register an additional 2,563,011 shares of
common stock, par value $2.50 per share (the "Common Stock"), including the
associated Rights, of Hartmarx Corporation (the "Company") reserved for
issuance under the Company's 1998 Incentive Stock Plan. Pursuant to General
Instruction E, the contents of the Company's Registration Statement on Form
S-8, File No. 333-75185, are hereby incorporated by reference into this
Registration Statement pursuant to General Instruction E of Form S-8.
Shares of the Common Stock previously registered under other
employee benefit plans of the Company that were not issued and/or options
under such plans that were previously issued and were terminated or were
never exercised are, pursuant to the terms of such plans, now available for
issuance under the Company's 1998 Incentive Stock Plan and are being
registered hereunder. The number of shares of Common Stock being registered
under the Company's 1998 Incentive Stock Plan include 390,082 shares under
the Company's 1985 Stock Option Plan, 728,806 shares under the Company's
1988 Stock Option Plan and 1,444,123 shares under the Company's 1995
Incentive Stock Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The following information is provided pursuant to General
Instruction E of Form S-8.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Company pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by
reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended November 30, 1999.
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended February 29, 2000, May 31, 2000 and August 31, 2000 and the
Company's Current Report on Form 8-K, dated April 13, 2000 (filed May 2,
2000).
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-B, dated July 8, 1983, filed with the
Commission pursuant to Section 12(b) of the Exchange Act; and the
description of the Rights contained in the Company's Registration Statement
on Form 8-A/A, dated May 2, 2000, filed with the Commission pursuant to
Section 12(b) of the Exchange Act.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for
purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this registration statement.
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Amended and Restated Rights Agreement, dated as of
April 13, 2000, by and between the Company and First
Chicago Trust Company of New York, as Rights Agent
(incorporated by reference to Exhibit 4.1 to the
Company's Form 8-A/A, filed May 2, 2000).
4.2 Indenture, dated as of March 15, 1994, between the Company
and Bank One Wisconsin Trust Company, N.A., Trustee,
relating to the Company's 10 7/8% Senior Subordinated
Notes due 2002 (incorporated by reference to Exhibit 4-D
to the Company's Form 10-Q for the quarter ended February
28, 1994).
4.3 Instrument of Resignation, Appointment and Acceptance,
dated July 31, 1995, accepting the resignation of Bank
One Wisconsin Trust Company, N.A. and appointing Bank
One Columbus, N.A. as successor Paying Agent, Registrar
and Trustee under the Indenture (incorporated by
reference to Exhibit 4-B-1 to the Company's Form 10-K
for the fiscal year ended November 30, 1995).
4.4 Amended and Restated Credit Agreement, dated as of
August 18, 1999, among the Company, the Lenders listed
therein and General Electric Capital Corporation, as
Managing Agent and Collateral Agent (incorporated by
reference to Exhibit 4-C to the Company's Form 10-Q for
the quarter ended August 31, 1999).
5.1 Opinion of Taras R. Proczko, Vice President, Corporate
Counsel and Secretary of the Company.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Taras R. Proczko (included in 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 maximum 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
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective 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 with or furnished
to the Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange 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, 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 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 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.
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 Chicago, State of Illinois, on
this 7th day of November, 2000.
HARTMARX CORPORATION
By: /s/ Taras R. Proczko
-----------------------------
Name: Taras R. Proczko
Title: Vice President, Corporate
Counsel and Secretary
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 this 7th day of November, 2000.
SIGNATURE TITLE
--------- -----
*
--------------------------- Chairman, Chief Executive Officer and Director
Elbert O. Hand
*
--------------------------- President, Chief Operating Officer and Director
Homi B. Patel
*
-------------------------- Director
A. Robert Abboud
*
-------------------------- Director
Charles Marshall
*
-------------------------- Director
Samaual A.T. Bakhsh
*
-------------------------- Director
Michael B. Rohlfs
*
-------------------------- Director
Jeffrey A. Cole
*
-------------------------- Director
Stuart L. Scott
*
-------------------------- Director
Raymond F. Farley
*
-------------------------- Director
Ella D. Strubel
*
-------------------------- Director
Donald P. Jacobs
*
-------------------------- Vice President and Controller (Principal
Andrew A. Zahr Accounting Officer)
*
-------------------------- Executive Vice President and Chief Financial
Glenn R. Morgan Officer (Principal Financial Officer)
* By:/s/ Taras R. Proczko
---------------------
Taras R. Proczko, Attorney-in-fact
EXHIBIT INDEX
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Amended and Restated Rights Agreement, dated as of
April 13, 2000, by and between the Company and First
Chicago Trust Company of New York, as Rights Agent
(incorporated by reference to Exhibit 4.1 to the
Company's Form 8-A/A, filed May 2, 2000).
4.2 Indenture, dated as of March 15, 1994, between the Company
and Bank One Wisconsin Trust Company, N.A., Trustee,
relating to the Company's 10 7/8% Senior Subordinated
Notes due 2002 (incorporated by reference to Exhibit 4-D
to the Company's Form 10-Q for the quarter ended February
28, 1994).
4.3 Instrument of Resignation, Appointment and Acceptance,
dated July 31, 1995, accepting the resignation of Bank
One Wisconsin Trust Company, N.A. and appointing Bank
One Columbus, N.A. as successor Paying Agent, Registrar
and Trustee under the Indenture (incorporated by
reference to Exhibit 4-B-1 to the Company's Form 10-K
for the fiscal year ended November 30, 1995).
4.4 Amended and Restated Credit Agreement, dated as of
August 18, 1999, among the Company, the Lenders listed
therein and General Electric Capital Corporation, as
Managing Agent and Collateral Agent (incorporated by
reference to Exhibit 4-C to the Company's Form 10-Q for
the quarter ended August 31, 1999).
5.1 Opinion of Taras R. Proczko, Vice President, Corporate
Counsel and Secretary of the Company.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Taras R. Proczko (included in Exhibit 5.1).
24.1 Power of Attorney
