As filed with the Securities and Exchange Commission on June 10, 1998
Registration No. 333-
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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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TODAY'S MAN, INC.
(Exact name of Registrant as specified in its charter)
Pennsylvania 23-1743137
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Today's Man, Inc.
835 Lancer Drive
Moorestown, New Jersey 08057
(Address of Principal Executive Offices)
TODAY'S MAN, INC.
MANAGEMENT STOCK OPTION PLAN
(Full title of the Plan)
DAVID FELD
Chairman, President and Chief Executive Officer
Today's Man, Inc.
835 Lancer Drive
Moorestown, N.J. 08057
(609) 235-5656
(Name, address and telephone number,
including area code, of agent for service)
Copies of Communications To:
FRANCIS E. DEHEL, ESQUIRE
Blank Rome Comisky & McCauley LLP
One Logan Square
Philadelphia, Pennsylvania 19103
(215) 569-5500
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Amount Proposed maximum Proposed maximum
Title of securities to be offering price aggregate offering Amount of
to be registered registered(1) per share(2) price(2) registration fee
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<S> <C> <C> <C> <C>
Common Stock, no par value
per share.................... 2,450,000 $2.38 $5,831,000 $1,737.64
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</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Pursuant to Rule 457(h), the offering price per share is an average based
upon an exercise price of $2.38 per share for previously granted options to
purchase 2,247,500 shares and the average of the high and low sale prices
of the Common Stock reported on the National Association of Securites
Dealers, Inc. Automated Quotation System-National Market System on June 4,
1998 for the remaining 202,500 currently unissued options.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the Today's Man, Inc. Management Stock
Option Plan (the "Plan") as specified by Rule 428(b)(1) promulgated by the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act").
Such documents are not being filed with the Commission, but constitute (along
with the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II hereof) a Prospectus that meets the requirements
of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any and all of the documents incorporated by reference, other than exhibits
to such documents (unless such exhibits are specifically incorporated by
reference to the information that is incorporated). Requests should be directed
to Today's Man, Inc., 835 Lancer Drive, Moorestown, NJ 08057, Attention: Frank
E. Johnson, Executive Vice President and Chief Financial Officer, telephone
number: (609) 235-5656.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The Registrant and the Plan hereby incorporate by reference in this
Registration Statement the following documents:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
January 31, 1998;
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Annual Report on Form 10-K referred to in (a) above; and
(c) The description of the Company's Common Stock, which is incorporated by
reference from the Company's Registration Statement on Form 8-A filed
under the Exchange Act with the Commission on December 29, 1997,
including all amendments or reports filed for the purpose of updating
such description.
All reports and other documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
after the date hereof, and prior to the filing of a post-effective amendment
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which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold hereunder, shall be deemed
incorporated by reference into this Registration Statement and to be a part
thereof from the date of the filing of such documents.
All information appearing in this Registration Statement and the Prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
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 1741 through 1750 of Subchapter D, Chapter 17, of the Pennsylvania
Business Corporation Law of 1988, as amended, (the "BCL"), contain provisions
for mandatory and discretionary indemnification of a corporation's directors,
officers and other personnel, and related matters.
Under Section 1741, subject to certain limitations, a corporation has the
power to indemnify directors and officers under certain prescribed circumstances
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with an action or
proceeding, whether civil, criminal, administrative or investigative, to which
any of them is a party by reason of his being a representative, director or
officer of the corporation or serving at the request of the corporation as a
representative of another corporation, partnership, joint venture, trust or
other enterprise, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful. Under Section 1743, indemnification is mandatory to the
extent that the officer or director has been successful on the merits or
otherwise in defense of any action or proceeding if the appropriate standards of
conduct are met.
Section 1742 provides for indemnification in derivative actions except in
respect of any claim, issue or matter as to which the person has been adjudged
to be liable to the corporation unless and only to the extent that the proper
court determines upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for the expenses that the court deems proper.
Section 1744 provides that, unless ordered by a court, any indemnification
under Section 1741 or 1742 shall be made by the corporation only as authorized
in the specific case upon a determination that the representative met the
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applicable standard of conduct, and such determination will be made by the board
of directors (i) by a majority vote of a quorum of directors not parties to the
action or proceeding; (ii) if a quorum is not obtainable, or if obtainable and a
majority of disinterested directors so directs, by independent legal counsel; or
(iii) by the shareholders.
Section 1745 provides that expenses incurred by an officer, director,
employee or agent in defending a civil or criminal action or proceeding may be
paid by the corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation.
Section 1746 provides generally that, except in any case where the act or
failure to act giving rise to the claim for indemnification is determined by a
court to have constituted willful misconduct or recklessness, the
indemnification and advancement of expenses provided by Subchapter 17D of the
BCL shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in his or her official capacity and as to action in another capacity
while holding that office.
Section 1747 grants to a corporation the power to purchase and maintain
insurance on behalf of any director or officer against any liability incurred by
him or her in his or her capacity as officer or director, whether or not the
corporation would have the power to indemnify him or her against the liability
under Subchapter 17D of the BCL.
Section 1748 and 1749 extend the indemnification and advancement of expenses
provisions contained in Subchapter 17D of the BCL to successor corporations in
fundamental changes and to representatives serving as fiduciaries of employee
benefit plans.
Section 1750 provides that the indemnification and advancement of expenses
provided by, or granted pursuant to, Subchapter 17D of the BCL, shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs and personal representative of such person.
For information regarding provisions under which a director or officer of the
Company may be insured or indemnified in any manner against any liability which
he or she may incur in his or her capacity as such, reference is made to Section
13 of the Company's Amended and Restated Articles of Incorporation and to
Article IV of the Company's Amended and Restated Bylaws, which provide in
general that the Company shall indemnify its officers and directors to the
fullest extent authorized by law.
The Company has obtained directors' and officers' liability insurance which
covers certain liabilities, including liabilities to the Company and its
stockholders, in the amount of $2.0 million.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
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The following exhibits are filed as part of this Registration Statement or,
where so indicated have been previously filed and are incorporated herein by
reference.
Exhibit Number Description
5.1 Opinion of Blank Rome Comisky & McCauley LLP.
23.1 Consent of Blank Rome Comisky & McCauley LLP (included in Exhibit
5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
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, as amended;
(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;
(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 paragraph (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or S-8 and the information required to be
included in a Post-Effective Amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934, as amended, that are incorporated by
reference in the Registration Statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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 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, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
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Securities Exchange Act of 1934, as amended (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 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
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 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, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all 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 Moorestown, New Jersey, on the 9th day of June, 1998.
TODAY'S MAN, INC.
By: /s/ David Feld
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David Feld, Chairman of the Board,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on the 9th day of June, 1998.
Name Title
/s/ David Feld Chairman of the Board, President and
- ------------------------------ Chief Executive Officer (principal executive
David Feld officer)
/s/ Leonard Wasserman Executive Vice President and Director
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Leonard Wasserman
/s/ Larry Feld Vice President, Secretary and Director
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Larry Feld
/s/ Frank E. Johnson Executive Vice President and Chief Financial
- ------------------------------ Officer (principal accounting and financial
Frank E. Johnson officer)
/s/ Ira Brind Director
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Ira Brind
/s/ Verna K. Gibson Director
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Verna K. Gibson
/s/ Bernard J. Korman Director
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Bernard J. Korman
- ------------------------------ Director
Randell Lambert
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EXHIBIT INDEX
Exhibit Numbers Description
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5.1 Opinion of Blank Rome Comisky & McCauley LLP.
23.1 Consent of Blank Rome Comisky & McCauley LLP (included as
part of Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
EXHIBIT 5.1
June 9, 1998
Today's Man, Inc.
835 Lancer Drive
Moorestown, NJ 08057
RE: Today's Man, Inc. Registration Statement on Form S-8
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Gentlemen:
We have acted as counsel to Today's Man, Inc. (the "Company") in connection
with the Registration Statement on Form S-8 (the "Registration Statement") filed
by the Company with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, relating to the offer and sale of up to
2,450,000 shares of common stock, no par value (the "Common Stock"), by the
Company pursuant to the Today's Man, Inc. Management Stock Option Plan (the
"Plan"). This opinion is furnished pursuant to the requirements of Item
601(b)(5) of Regulation S-K.
Although as counsel to the Company we have advised the Company in connection
with a variety of matters referred to us by it, our services are limited to
specific matters so referred. Consequently, we may not have knowledge of many
transactions in which the Company has engaged or its day-to-day operations.
In rendering this opinion, we have examined only the following documents: (i)
the Company's Amended and Restated Articles of Incorporation and Amended and
Restated Bylaws, (ii) resolutions adopted by the Board of Directors of the
Company, (iii) the Registration Statement and (iv) the Plan. We have not
performed any independent investigation other than the document examination
described above. Our opinion is therefore qualified in all respects by the scope
of that document examination. We have assumed and relied, as to questions of
fact and mixed questions of law and fact, on the truth, completeness,
authenticity and due authorization of all certificates, documents, and records
examined and the genuineness of all signatures. This opinion is limited to the
laws of the Commonwealth of Pennsylvania.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock of the Company which are being offered and sold by the
Company pursuant to the Registration Statement and the Plan, when sold in the
manner and for the consideration contemplated by the Registration Statement and
the Plan, will be legally issued, fully paid and non-assessable.
This opinion is given as of the date hereof. We assume no obligation to
update or supplement this opinion to reflect any facts or circumstances which
may hereafter come to our attention or any changes in laws which may hereafter
occur.
<PAGE>
This opinion is strictly limited to the matters stated herein and no other or
more extensive opinion is intended, implied or to be inferred beyond the matters
expressly stated herein.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Sincerely,
/s/ Blank Rome Comisky & McCauley LLP
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Management Stock Option Plan of Today's Man, Inc.
of our report dated March 18, 1998 with respect to the consolidated financial
statements of Today's Man, Inc. included in its Annual Report (Form 10-K) for
the year ended January 31, 1998, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
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Philadelphia, Pennsylvania
June 5, 1998
