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As filed with the Securities and Exchange Commission on September 5, 2000
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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THE MEN'S WEARHOUSE, INC.
(Exact name of registrant as specified in its charter)
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TEXAS 74-1790172
(State of incorporation or organization) (I.R.S. Employer Identification No.)
5803 GLENMONT DRIVE
HOUSTON, TEXAS 77081
(Address of principal executive offices) (Zip Code)
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If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), please check the following box. [X]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), please check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on which
to be so Registered Each Class is to be Registered
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COMMON STOCK, $.01PAR VALUE NEW YORK STOCK EXCHANGE
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The authorized capital stock of The Men's Wearhouse, Inc., a Texas
corporation (the "Company") consists of 100,000,000 shares of common stock, par
value $.01 per share (the "Common Stock"), and 2,000,000 shares of preferred
stock, par value $.01 per share (the "Preferred Stock").
COMMON STOCK
Holders of shares of Common Stock are entitled to one vote per share in
the election of directors and on all other matters submitted to a vote of
shareholders. Such holders do not have the right to cumulate their votes in the
election of directors. Holders of Common Stock have no redemption or conversion
rights and no preemptive or other rights to subscribe for securities of the
Company. In the event of a liquidation, dissolution or winding up of the
Company, holders of Common Stock are entitled to share equally and ratably in
all of the assets remaining, if any, after satisfaction of all debts and
liabilities of the Company, and the preferential rights of any series of
Preferred Stock then outstanding. The shares of Common Stock outstanding are
fully paid and non-assessable.
Holders of Common Stock have an equal and ratable right to receive
dividends, when, as and if declared by the board of directors out of funds
legally available therefor and only after payment of, or provision for, full
dividends on all outstanding shares of any series of Preferred Stock and after
the Company has made provision for any required sinking or purchase funds for
any series of Preferred Stock. The Company's Credit Agreement prohibits the
payment of cash dividends on the Common Stock.
In addition, on February 10, 1999, a wholly owned subsidiary of the
Company combined with Moores Retail Group Inc., a New Brunswick corporation
("Moores"). Due to Canadian tax law considerations, Moores issued securities
("Exchangeable Shares") exchangeable for 2.5 million shares of Common Stock to
the shareholders and option holders of Moores. The Exchangeable Shares have
substantially identical economic and legal rights as, and will ultimately be
exchanged on a one-on-one basis for, shares of Common Stock. All Exchangeable
Shares must be converted into Common Stock within five years of the combination.
As of July 28, 2000, there were 573,605 Exchangeable Shares that have not yet
been converted, but are reflected as Common Stock outstanding for financial
reporting purposes by the Company.
PREFERRED STOCK
The Preferred Stock may be issued, from time to time in one or more
series, and the board of directors, without further approval of the
shareholders, is authorized to fix the dividend rights and terms, redemption
rights and terms, liquidation preferences, conversion rights, voting rights and
sinking fund provisions applicable to each such series of Preferred Stock. If
the Company issues a series of Preferred Stock in the future that has voting
rights or preference over the Common Stock with respect to the payment of
dividends and upon the Company's liquidation, dissolution or winding up, the
rights of the holders of Common Stock offered hereby may be adversely affected.
The issuance of shares of Preferred Stock could be utilized, under certain
circumstances, in an attempt to prevent an acquisition of the Company. The
Company has no present intention to issue any shares of Preferred Stock other
than the one share of Preferred Stock issued in connection with the Moores
combination.
One share of Preferred Stock, designated "Series A Special Voting
Preferred Stock", was issued in connection with the Moores transaction. The
holder of this share of Series A Special Voting Preferred Stock is entitled to
vote on all matters on which the holders of Common Stock vote and is entitled to
that number of votes as are equal to the number of Exchangeable Shares then
outstanding. The trustee who holds the one share of Series A Special Voting
Preferred Stock must vote such share in accordance with instructions from the
holders of Exchangeable Shares. In the event of a liquidation, dissolution or
winding up of the Company, the holder of the one share of Series A Special
Voting Preferred Stock will be entitled to receive $0.01, after satisfaction of
all
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debts and liabilities of the Company and the preferential rights of any other
series of Preferred Stock then outstanding. The holder of the Series A Special
Voting Preferred Stock shall have no rights as to the payment of dividends nor
shall the holder thereof be entitled to convert the Series A Special Voting
Preferred Stock into Common Stock.
LIMITATION OF DIRECTOR LIABILITY
The Restated Articles of Incorporation of the Company contain a
provision that limits the liability of the Company's directors as permitted
under Texas law. The provision eliminates the liability of a director to the
Company or its shareholders for monetary damages for negligent or grossly
negligent acts or omissions in the director's capacity as a director. The
provision does not affect the liability of a director (i) for breach of his duty
of loyalty to the Company or to its shareholders, (ii) for acts or omissions not
in good faith or that involve intentional misconduct or a knowing violation of
law, (iii) for acts or omissions for which the liability of a director is
expressly provided by an applicable statute, or (iv) in respect of any
transaction from which a director received an improper personal benefit.
Pursuant to the Restated Articles of Incorporation, the liability of directors
will be further limited or eliminated without action by shareholders if Texas
law is amended to further limit or eliminate the personal liability of
directors.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is American Stock
Transfer & Trust Company.
ITEM 2. EXHIBITS.
4.1 Restated Articles of Incorporation (incorporated by
reference from Exhibit 3.1 to the Company's Quarterly
Report on Form 10-Q for the Quarter ended July 30,
1994).
4.2 Bylaws, as amended (incorporated by reference from
Exhibit 3.2 to the Company'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 Company's
Registration Statement on Form S-1
(Reg. 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 Company'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
Company'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
(incorporated by reference from Exhibit 4.6 to the
Company's Annual Report on Form 10-K for the fiscal
year ended January 28, 1995).
4.7 Registration Rights Agreement dated as of
November 18, 1998, by and among the Company and
Marpro Holdings, Inc., MGB Limited Partnership,
Capital D'Amerique CDPQ Inc., Cerberus International,
Ltd., Ultra Cerberus
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Fund, Ltd., Styx International Ltd., The Long
Horizons Overseas Fund Ltd., The Long Horizons Fund,
L.P. and Styx Partners, L.P. (incorporated by
reference from Exhibit 4.13 to the Company's
Registration Statement on Form S-3 (Registration
No. 333-69979)).
4.8 Support Agreement dated February 10, 1999, between
the Company, Golden Moores Company, Moores Retail
Group Inc. and Marpro Holdings, Inc., MGB Limited
Partnership, Capital D'Amerique CDPQ Inc., Cerberus
International, Ltd., Ultra Cerberus Fund, Ltd., Styx
International Ltd., The Long Horizons Overseas Fund
Ltd., The Long Horizons Fund, L.P. and Styx Partners,
L.P. (incorporated by reference from Exhibit 4.2 to
the Company's Current Report on Form 8-K).
4.9 Revolving Credit Agreement dated as of February 5,
1999, by and among the Company and NationsBank of
Texas N.A. and the Banks listed therein, including
form of Revolving Note (incorporated by reference
from Exhibit 4.13 to the Company's Annual Report on
Form 10-K for the fiscal year ended January 30,
1999).
4.10 Term Credit Agreement dated as of February 5, 1999,
by and among the Company, certain subsidiaries of the
Company and NationsBank of Texas N.A. and the Banks
listed therein, including form of Term Note
(incorporated by reference from Exhibit 4.14 to the
Company's Annual Report on Form 10-K for the fiscal
year ended January 30, 1999).
4.11 Revolving Credit Agreement dated as of February 10,
1999, by and among the Company, certain subsidiaries
of the Company and Bank of America Canada and the
Banks listed therein, including form of Revolving
Note (incorporated by reference from Exhibit 4.15 to
the Company's Annual Report on Form 10-K for the
fiscal year ended January 30, 1999).
4.12 Certificate of Designation, Preferences, Limitations
and Relative Rights of the Series A Special Voting
Preferred Stock (incorporated by reference from
Exhibit 3.3 to the Company's Annual Report on Form
10-K for the fiscal year ended January 30, 1999).
4.13 Articles of Amendment to the Restated Articles of
Incorporation (incorporated by reference from Exhibit
3.1 to the Company's Quarterly Report on Form 10-Q
for the quarter ended July 31, 1999).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
THE MEN'S WEARHOUSE, INC.
By: /s/ GARY G. CKODRE
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Gary G. Ckodre
Vice President - Finance and
Principal Financial and Accounting Officer
Dated: August 31, 2000
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