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As filed with the Securities and Exchange Commission on February 4, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
__________________________________
THE MEN'S WEARHOUSE, INC.
(Exact name of registrant as specified in its charter)
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TEXAS 74-1790172
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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5803 GLENMONT DRIVE
HOUSTON, TEXAS 77081
(Address of Principal Executive Offices)
THE MEN'S WEARHOUSE, INC.
1996 STOCK OPTION PLAN
DAVID H. EDWAB
40650 ENCYCLOPEDIA CIRCLE
FREMONT, CALIFORNIA 94538
(Name and address of agent for service)
(510) 657-9821
(Telephone number, including area code, of agent for service)
__________________________________
With Copy to:
FULBRIGHT & JAWORSKI L.L.P.
801 PENNSYLVANIA AVENUE, N.W.
WASHINGTON, D.C. 20004
(202) 662-4660
ATTENTION: MICHAEL W. CONLON
__________________________________
CALCULATION OF REGISTRATION FEE
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Proposed Proposed maximum
Title of securities Amount to maximum offering aggregate offering Amount of
to be registered be registered price per unit(2) price(2) registration fee
- ---------------------------------------------------------------------------------------------------------------
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Common Stock
$.01 par value 750,000 shares(1) $26.44 $19,830,000 $6,010
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(1) There are also registered hereby such indeterminate number of shares
of Common Stock as may become issuable by reason of the anti-dilution
provisions of the 1996 Stock Option Plan.
(2) Estimated, pursuant to Rule 457(h), solely for the purpose of
calculating the registration fee and based upon the average of one
high and low sales price of a share of Common Stock on the Nasdaq
National Market on January 28, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference
in this Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the
fiscal year ended February 3, 1996; and
2. The Registrant's Quarterly Reports on Form 10-Q for
the fiscal quarters ended May 4, 1996, August 3, 1996 and November 2, 1996;
3. The description of the Registrant's Common Stock,
$.01 par value, set forth under the caption "Description of Capital Stock" in
the Registrant's Registrant Statement on Form 8-A pursuant to Section 12(g) of
the Securities Exchange Act of 1934, filed by the Registrant with the
Securities Exchange Commission on April 3, 1992, and declared effective on
April 13, 1992.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to
the filing hereof and 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 in this Registration Statement and to be a part hereof from the date
of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Michael W. Conlon, a partner in the firm of Fulbright &
Jaworski L.L.P., is the Secretary of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 2.02-1 of the Texas Business Corporation Act provides
that any director or officer of a Texas corporation may be indemnified against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by him in connection with or in defending any action, suit or
proceeding in which he is a party by reason of his position. With respect to
any proceeding arising from actions taken in his official capacity as a
director or officer, he may be indemnified so long as it shall be determined
that he conducted himself in good faith and that he reasonably believed that
such conduct was in the corporation's best interests. In cases not concerning
conduct in his official capacity as a director or officer, a director may be
indemnified
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as long as he reasonably believed that his conduct was not opposed to the
corporation's best interests. In the case of any criminal proceeding, a
director or officer may be indemnified if he had no reasonable cause to believe
his conduct was unlawful. If a director or officer is wholly successful, on
the merits or otherwise, in connection with such a proceeding, such
indemnification is mandatory. The Registrant's Bylaws provide for
indemnification of its present and former directors and officers to the fullest
extent provided by Article 2.02-1.
The Registrant's Bylaws further provide for indemnification of
officers and directors against reasonable expenses incurred in connection with
the defense of any such action, suit or proceeding in advance of the final
disposition of the proceeding.
The Registrant's Articles of Incorporation were amended on
September 6, 1991, to eliminate or limit liabilities of directors for breaches
of their duty of care. The amendment does not limit or eliminate the right of
the Registrant or any shareholder to pursue equitable remedies such as an
action to enjoin or rescind a transaction involving a breach of a director's
duty of care, nor does it affect director liability to parties other than the
Registrant or its shareholders. In addition, directors will continue to be
liable for (i) breach of their duty of loyalty, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
the law, (iii) declaring an illegal dividend or stock repurchase, (iv) any
transaction in which the directors received an improper personal benefit, or
(v) acts or omissions for which the liability of directors is expressly
provided by statute. In addition, the amendment applies only to claims under
Texas law against a director arising out of his role as a director and not, if
he is also an officer, his role as an officer or in any other capacity and does
not limit a director's liability under any other law, such as federal
securities law.
Texas corporations are also authorized to obtain insurance to
protect officers and directors from certain liabilities, including liabilities
against which the corporation cannot indemnify its directors and officers. The
Registrant currently has in effect a director's and officer's liability
insurance policy, which provides coverage in the maximum amount of $10,000,000
($2,000,000 for matters arising in connection with the Registrant's initial
public offering), subject to a $250,000 deductible.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
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4.1 - Restated Articles of Incorporation (incorporated by reference from Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended July 30, 1994).
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4.2 - By-laws (incorporated by reference from Exhibit 3.2 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended January 29, 1994).
4.3 - Form of Common Stock certificate (incorporated by reference from Exhibit 4.3 to the
Registrant's Registration Statement on Form S-1 (Registration No. 33-45949)).
4.4 - Employment Agreement dated as of January 31, 1991, by and between the Company and David H.
Edwab, including the First Amendment thereto dated as of September 30, 1991 (incorporated by
reference from Exhibit 4.4 to the Registrant's Registration Statement on Form S-1
(Registration No. 33-45949)).
4.5 - Second Amendment effective as of January 1, 1993, to Employment Agreement dated as of
January 31, 1991, by and between the Company and David H. Edwab (incorporated by reference
from Exhibit 4.5 to the Registrant's Registration Statement on Form S-1 (Registration
No. 33-60516)).
4.6 - Second [sic] Amendment dated as of April 12, 1994, to Employment Agreement dated as of
January 31, 1991, by and between the Company and David H. Edwab (incorporated by reference
from Exhibit 4.6 to the Registrant's Annual Report on Form 10-K for the fiscal year ended
January 28, 1995).
4.7 - Option Issuance Agreement dated as of September 30, 1991, by and between the Company and
David H. Edwab (incorporated by reference from Exhibit 4.5 to the Registrant's Registration
Statement on Form S-1 (Registration No. 33-45949)).
4.8 - First Amendment to Option Issuance Agreement dated April 22, 1992, but effective as of
September 30, 1991 (incorporated by reference from Exhibit 4.7 to the Registrant's
Registration Statement on Form S-8 (Registration No. 33-48109)).
4.9 - Second Amendment to Option Issuance Agreement dated effective as of January 1, 1993
(incorporated by reference from Exhibit 4.8 to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-60516)).
4.10 - First [sic] Amendment to Option Issuance Agreement dated as of April 12, 1994 (incorporated
by reference from Exhibit 4.10 to the Registrant's Annual Report on Form 10-K for the fiscal
year ended January 28, 1995).
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4.11 - 1996 Stock Option Plan (incorporated by reference from Exhibit 10.2 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended August 3, 1996).
5.1 - Opinion of Fulbright & Jaworski L.L.P. as to the legality of the securities being
registered.
23.1 - Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1).
23.2 - Consent of Deloitte & Touche LLP.
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ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes to file, during any
period in which offers or sales are being made, a post-effective amendment to
this Registration Statement 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.
The undersigned registrant hereby undertakes (i) that, for the purpose
of determining any liability under the Securities Act of 1933 (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; (ii) 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; and (iii) to file a post-effective
amendment to the Registration Statement to include any financial statements
required by Article 3-19 of Regulation S-X at the start of any delayed offering
or throughout a continuous offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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.
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 Securities and Exchange
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
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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.
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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 Houston, Texas, on the 31st day of January, 1997.
THE MEN'S WEARHOUSE, INC.
By: /s/ George Zimmer
-----------------------------------
George Zimmer
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints George Zimmer, David H. Edwab
and Gary G. Ckodre, or either of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same and all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting
said attorney-in-fact and agent, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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 dates indicated.
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/s/ George Zimmer Chairman of the Board, January 31, 1997
- ------------------------------------------- President and Chief
George Zimmer Executive Officer
(Principal Executive Officer)
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/s/ David H. Edwab Chief Operating and January 31, 1997
- ---------------------------------- Financial Officer,
David H. Edwab Treasurer and Director
(Principal Financial
Officer)
/s/ Gary G. Ckodre Vice President and January 31, 1997
- ---------------------------------- Chief Accounting Officer
Gary G. Ckodre
/s/ Richard E. Goldman Executive Vice January 31, 1997
- ---------------------------------- President and Director
Richard E. Goldman
/s/ Robert E. Zimmer Senior Vice President-- January 31, 1997
- ---------------------------------- Real Estate and Director
Robert E. Zimmer
/s/ James E. Zimmer Senior Vice President-- January 31, 1997
- ---------------------------------- Merchandising and Director
James E. Zimmer
/s/ Harry M. Levy Senior Vice President-- January 31, 1997
- ---------------------------------- Planning and Systems,
Harry M. Levy Chief Information Officer
and Director
/s/ Michael L. Ray Director January 28, 1997
- ----------------------------------
Michael L. Ray
/s/ Sheldon I. Stein Director January 31, 1997
- ----------------------------------
Sheldon I. Stein
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INDEX TO EXHIBITS
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Exhibit
Number Description of Exhibits
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4.1 Restated Articles of Incorporation (incorporated by reference from Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended July 30, 1994).
4.2 By-laws (incorporated by reference from Exhibit 3.2 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended January 29, 1994).
4.3 Form of Common Stock certificate (incorporated by reference from Exhibit 4.3 to the
Registrant's Registration Statement on Form S-1 (Registration No. 33-45949)).
4.4 Employment Agreement dated as of January 31, 1991, by and between the Company and David H.
Edwab, including the First Amendment thereto dated as of September 30, 1991 (incorporated by
reference from Exhibit 4.4 to the Registrant's Registration Statement on Form S-1
(Registration No. 33-45949)).
4.5 Second Amendment effective as of January 1, 1993, to Employment Agreement dated as of
January 31, 1991, by and between the Company and David H. Edwab (incorporated by reference
from Exhibit 4.5 to the Registrant's Registration Statement on Form S-1 (Registration
No. 33-60516)).
4.6 Second [sic] Amendment dated as of April 12, 1994, to Employment Agreement dated as of
January 31, 1991, by and between the Company and David H. Edwab (incorporated by reference
from Exhibit 4.6 to the Registrant's Annual Report on Form 10-K for the fiscal year ended
January 28, 1995).
4.7 Option Issuance Agreement dated as of September 30, 1991, by and between the Company and
David H. Edwab (incorporated by reference from Exhibit 4.5 to the Registrant's Registration
Statement on Form S-1 (Registration No. 33-45949)).
4.8 First Amendment to Option Issuance Agreement dated April 22, 1992, but effective as of
September 30, 1991 (incorporated by reference from Exhibit 4.7 to the Registrant's
Registration Statement on Form S-8 (Registration No. 33-48109)).
4.9 Second Amendment to Option Issuance Agreement dated effective as of January 1, 1993
(incorporated by reference from Exhibit 4.8 to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-60516)).
4.10 First [sic] Amendment to Option Issuance Agreement dated as of April 12, 1994 (incorporated
by reference from Exhibit 4.10 to the Registrant's Annual Report on Form 10-K for the fiscal
year ended January 28, 1995).
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Exhibit
Number Description of Exhibits
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4.11 1996 Stock Option Plan (incorporated by reference from Exhibit 10.2 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended August 3, 1996).
5.1 Opinion of Fulbright & Jaworski L.L.P. as to the legality of the securities being
registered.
23.1 Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
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EXHIBIT 5.1
[LETTERHEAD OF FULBRIGHT & JAWORSKI L.L.P.]
February 3, 1997
The Men's Wearhouse, Inc.
40650 Encyclopedia Circle
Fremont, California 94538
Gentlemen:
We have acted as counsel for The Men's Wearhouse, Inc., a Texas
corporation (the "Company"), in connection with its filing with the Securities
and Exchange Commission of a Registration Statement on Form S-8 (the
"Registration Statement") with respect to the registration under the Securities
Act of 1933, as amended, of 750,000 shares of the Company's common stock, $.01
par value per share (the "Shares"), to be offered upon the terms and subject to
the conditions set forth in the Company's 1996 Stock Option Plan (the "Plan").
We have examined (i) the Restated Articles of Incorporation and
By-Laws of the Company, each as amended to date, (ii) the Plan, (iii) the
Registration Statement, and (iv) such certificates, statutes and other
instruments and documents as we considered appropriate for purposes of the
opinions hereafter expressed.
In connection with this opinion, we have assumed the authenticity and
completeness of all records, certificates and other instruments submitted to us
as originals, the conformity to original documents of all records, certificates
and other instruments submitted to us as copies, the authenticity and
completeness of the originals of those records, certificates and other
instruments submitted to us as copies and the correctness of all statements of
fact contained in all records, certificates and other instruments that we have
examined.
Based upon and subject to the foregoing, we are of the opinion that
the Shares have been duly authorized and, when issued in accordance with the
terms of the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Fulbright & Jaworski L.L.P.
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EXHIBIT NO. 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
The Men's Wearhouse, Inc. on Form S-8 of our report dated March 6, 1996
appearing in The Annual Report on Form 10-K of The Men's Wearhouse, Inc. for
the year ended February 3, 1996.
DELOITTE & TOUCHE LLP
Houston, Texas
February 3, 1997
