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As filed with the Securities and Exchange Commission on February 18, 1999
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
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THE MEN'S WEARHOUSE, INC.
(Exact name of registrant as specified in its charter)
TEXAS 74-1790172
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5803 GLENMONT DRIVE
HOUSTON, TEXAS 77081
(Address of Principal Executive Offices) (Zip Code)
THE MEN'S WEARHOUSE, INC. 1998 KEY EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
--------------------------
DAVID H. EDWAB
40650 ENCYCLOPEDIA CIRCLE
FREMONT, CALIFORNIA 94538-2453
(Name and address of agent for service)
(510) 657-9821
(Telephone number, including area code, of agent for service)
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With Copy to:
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010
(713) 651-5100
ATTENTION: MICHAEL W. CONLON
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
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
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$.01 par value 750,000 shares(1) $28.375 $21,281,250.00 $5,917.00
==============================================================================================================
</TABLE>
(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 1998 Key Employee Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933 and based
upon the average of the high and low sales price of a share of Common
Stock on the Nasdaq National Market on February 10, 1999.
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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 January 31, 1998, as amended by Form 10-K/A;
2. The Registrant's Quarterly Reports on Form 10-Q for
the quarters ended May 2, 1998, August 1, 1998 and October 31, 1998;
3. The Registrant's Current Report on Form 8-K which was
filed with the Commission on December 30, 1998;
4. Definitive Proxy Statement for the Annual Meeting
held June 24, 1998 which was filed with the SEC on May 19, 1998 as part of
Schedule 14A; and
5. 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.
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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 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 $15,000,000.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
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 of the Company, as amended (incorporated by
reference from Exhibit 3.2 to the Registrant's
Annual Report on Form 10-K for the fiscal year
ended February 1, 1997).
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 - The Men's Wearhouse, Inc. 1998 Key Employee Stock
Option Plan (incorporated by reference from Exhibit
10.18 to the Registrant's Annual Report on Form
10-K for the fiscal year ended January 31, 1998, as
amended by Form 10-K/A).
5.1 - Opinion of Fulbright & Jaworski L.L.P.
23.1 - Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5.1).
23.2 - Consent of Deloitte & Touche LLP.
24.1 - Powers of Attorney from certain members of the
Board of Directors of the Company (contained on
page II-6).
ITEM 9. UNDERTAKINGS
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 this Registration Statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar volume 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 Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than
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a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
Provided, however, that paragraphs (1)(i) and (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
Securities and Exchange 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 herein, 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.
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.
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 Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 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 Houston, State of Texas, on February 18, 1999.
THE MEN'S WEARHOUSE, INC.
By: /s/ GEORGE ZIMMER
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George Zimmer
Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints George Zimmer, David Edwab and Gary G.
Ckodre, or any 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 any 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 any of
them, or his or their 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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ GEORGE ZIMMER Chairman of the Board, Chief Executive Officer and February 18, 1999
- ------------------------------------ Director
George Zimmer (Principal Executive Officer)
/s/ DAVID EDWAB President and Director February 18, 1999
- ------------------------------------
David Edwab
/s/ GARY G. CKODRE Vice President-Finance and Principal Financial and February 18, 1999
- ------------------------------------ Accounting Officer (Principal Financial and
Gary G. Ckodre Accounting Officer)
/s/ RICHARD E. GOLDMAN Executive Vice President February 18, 1999
- ------------------------------------ and Director
Richard E. Goldman
/s/ ROBERT E. ZIMMER Senior Vice President - Real Estate and Director February 18, 1999
- ------------------------------------
Robert E. Zimmer
/s/ JAMES E. ZIMMER Senior Vice President - Merchandising and Director February 18, 1999
- ------------------------------------
James E. Zimmer
/s/ HARRY M. LEVY Executive Vice President - Planning and Systems, February 18, 1999
- ------------------------------------ Chief Information Officer and Director
Harry M. Levy
/s/ RINALDO BRUTOCO Director February 18, 1999
- ------------------------------------
Rinaldo Brutoco
/s/ MICHAEL L. RAY Director February 18, 1999
- ------------------------------------
Michael L. Ray
/s/ SHELDON I. STEIN Director February 18, 1999
- ------------------------------------
Sheldon I. Stein
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits
------- -----------------------
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 of the Company, as amended (incorporated by
reference from Exhibit 3.2 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended February 1,
1997).
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 The Men's Wearhouse, Inc. 1998 Key Employee Stock Option
Plan (incorporated by reference from Exhibit 10.18 to the
Registrant's Annual Report on Form 10-K for the fiscal
year ended January 31, 1998, as amended by Form 10-K/A).
5.1 Opinion of Fulbright & Jaworski L.L.P.
23.1 Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
24.1 Powers of Attorney from certain members of the Board of
Directors of the Company (contained on page II-6).
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EXHIBIT 5.1
[FULBRIGHT & JAWORSKI L.L.P. LETTERHEAD]
February 18, 1999
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 1998 Key Employee 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,
/s/ FULBRIGHT & JAWORSKI L.L.P.
Fulbright & Jaworski L.L.P.
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
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 3, 1998
appearing in the Annual Report on Form 10-K of The Men's Wearhouse, Inc. for
the year ended January 31, 1998, as amended by Form 10-K/A.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Houston, Texas
February 18, 1999
