Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3 The Men's Wearhouse, Inc. 19 96K
2: EX-5.1 Opinion of Fulbright & Jaworski L.L.P. 2 9K
3: EX-23.2 Consent of Deloitte & Touche LLP 1 5K
4: EX-23.3 Consent of Arthur Andersen LLP 1 5K
5: EX-23.4 Consent of Ernst & Young LLP 1 5K
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 1999
REGISTRATION NUMBER 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE MEN'S WEARHOUSE, INC.
(Exact name of registrant as specified in its charter)
TEXAS
(State or other jurisdiction of incorporation or organization)
74-1790172
(I.R.S. Employer Identification No.)
5803 GLENMONT DRIVE
HOUSTON, TEXAS 77081
(713) 592-7200
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
GARY CKODRE
5803 GLENMONT DRIVE
HOUSTON, TEXAS 77081
(713) 592-7200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
MICHAEL W. CONLON
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010
(713) 651-5427
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS
SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
[Enlarge/Download Table]
CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
----------------------------------- ----------------- -------------------- -------------------- ------------------
Common stock, $.01 par value 62,134 $27.66 $1,718,627 $478
=================================== ================= ==================== ==================== ==================
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933 and based upon the
average of the high and low sale price of Common Stock as reported on the Nasdaq
National Market on June 9, 1999.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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PROSPECTUS
62,134 SHARES
THE MEN'S WEARHOUSE, INC.
COMMON STOCK
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This prospectus relates to the offer and sale of up to 62,134 shares of
The Men's Wearhouse, Inc. common stock by some of our future shareholders. Such
shares of common stock are not currently outstanding, but may be issued in the
future upon the exercise of options to purchase shares of common stock of The
Men's Wearhouse, Inc. We issued the options to certain holders of options to
purchase shares of common stock of K&G Men's Center, Inc. when our subsidiary,
TMW Combination Company, merged with K&G Men's Center, Inc. We will not receive
any proceeds from this sale.
Our common stock is quoted on the Nasdaq National Market under the
symbol "SUIT". The closing price on June 11, 1999, as reflected on the Nasdaq
National Market, was $25.75 per share.
Our principal executive office is located at 5803 Glenmont Drive,
Houston, Texas 77081 and the telephone number is (713) 592-7200.
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FOR INFORMATION CONCERNING CERTAIN RISKS RELATING TO AN INVESTMENT IN THE
MEN'S WEARHOUSE, INC. COMMON STOCK, SEE "RISK FACTORS" BEGINNING ON
PAGE 3.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES REGULATOR HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
June 14, 1999
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission (the "SEC"). You
may read and copy any document we file at the SEC's public reference rooms
located at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the SEC's regional offices located at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and 7 World Trade
Center, New York, New York 10048. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms. Our SEC filings are also
available to the public from the SEC's website at "http://www.sec.gov".
Our common stock is quoted on the Nasdaq National Market ("Nasdaq").
Our annual reports, quarterly and special reports, proxy statements and other
information may also be inspected at the offices of Nasdaq, 9801 Washingtonian
Boulevard, Gaithersburg, Maryland 20898.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings (File
No. 0-20036) we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 prior to the termination of the offering:
o Annual Report on Form 10-K for the year ended January 30,
1999;
o Current Reports on Form 8-K which were filed with the SEC on
February 25, 1999, March 5, 1999, April 26, 1999 and June 11,
1999;
o Definitive Proxy Statement for the Annual Meeting to be held
on July 1, 1999, which was filed with the SEC on June 2, 1999
as part of Schedule 14A; and
o The description of The Men's Wearhouse, Inc. common stock
contained in our Form 8-A dated April 3, 1993.
You, and any beneficial owner, may obtain a free copy of these filings
by writing or telephoning our Investor Relations Department at the following
address:
5803 Glenmont Drive
Houston, Texas 77081
Telephone (713) 592-7200
This prospectus is part of a registration statement we filed with the
SEC. You should rely only on the information or representations provided in this
prospectus. We have authorized no one to provide information other than that
provided in this prospectus. We have authorized no one to provide you with
different information. We are not making an offer of these securities in any
state where the offer is not permitted. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the front of the document.
The Men's Wearhouse(R) is a registered trademark and service mark of
the Company.
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FORWARD-LOOKING STATEMENTS
Certain statements made herein and in other public filings and releases
by the Company contain "forward-looking" information (as defined in the Private
Securities Litigation Reform Act of 1995) that involve risk and uncertainty.
These forward-looking statements may include, but are not limited to, future
capital expenditures, acquisitions (including the amount and nature thereof),
future sales, earnings, margins, costs, number and costs of store openings,
demand for men's clothing, market trends in the retail men's clothing business,
currency fluctuations, inflation and various economic and business trends. You
can identify forward-looking statements by the use of words such as "expect,"
"estimate," "project," "budget," "forecast," "anticipate," "plan" and similar
expressions. Forward-looking statements include all statements regarding
expected financial position, results of operations, cash flows, dividends,
financing plans, business strategies, operating efficiencies or synergies,
budgets, capital and other expenditures, competitive positions, growth
opportunities for existing products, plans and objectives of management, and
markets for our stock. We caution you not to place undue reliance on these
forward-looking statements, which speak only as of their dates. We undertake no
obligation to publicly update or revise any forward-looking statements, whether
as a result of new information, future events or otherwise. Forward-looking
statements may be made by management orally or in writing, including but not
limited to, the Management's Discussion and Analysis of Financial Condition and
Results of Operations section and other sections of our filings with the SEC
under the Securities Exchange Act of 1934 and the Securities Act of 1933,
incorporated by reference herein.
Actual results and trends in the future may differ materially depending
on a variety of factors including, but not limited to, domestic and
international economic activity and inflation, successful execution of internal
operating plans and new store and new market expansion plans, performance issues
with key suppliers, foreign currency fluctuations, government export and import
policies and legal proceedings. Future results will also be dependent upon our
ability to continue to identify and complete successful expansions and
penetrations into existing and new markets and our ability to integrate such
expansions with our existing operations.
RISK FACTORS
You should carefully consider the following risk factors and the other
information in this prospectus in evaluating whether to invest in any of our
shares.
COMBINATIONS WITH MOORES AND K&G
On February 10, 1999, we combined with Moores Retail Group Inc.
("Moores"). Moores operated 107 men's tailored clothing stores in Canada and
eight stores in the United States as of that date. Moores also operates a
manufacturing facility in Montreal, Canada, which manufactures men's suits,
sport coats and pants. On June 1, 1999, we also combined with K&G Men's Center,
Inc. ("K&G"). As of that date, K&G operated 34 three-day "destination" stores in
16 states throughout the United States. The combination of both Moores and K&G
with the Company will require our management to focus considerable attention on
integration of their operations with ours. This will temporarily divert some of
our management's attention from normal day-to-day business. Also, combining
personnel with different business backgrounds and locations and combining
companies with different corporate cultures could be difficult. This is
especially true with respect to Moores since we have not previously had any
operations outside the United States and have not previously engaged in
manufacturing. We cannot assure you that we will be able to integrate both K&G
and Moores with our company on a timely or profitable basis. While we believe
that both K&G's and Moores' employees are well qualified, we cannot assure you
that key employees will continue to work for us.
EXCHANGE RATE FLUCTUATIONS
Moores conducts most of its business in Canadian dollars. The exchange
rate between Canadian dollars and U.S. dollars has fluctuated over the last ten
years. If the value of the Canadian dollar against the U.S. dollar weakens, then
the revenues and earnings of our Canadian operations will be reduced when they
are translated to U.S. dollars. Also, the value of our Canadian assets in U.S.
dollars may decline.
We use direct sourcing programs for inventory purchases. Some of these
transactions are denominated in foreign currencies, primarily the Italian lira,
which create currency exchange risks. Forward exchange contracts are used to
protect against these risks, but we cannot assure you that currency exchange
losses will not occur.
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MANUFACTURING RISKS
Moores, through its wholly owned subsidiary Golden Brand Clothing
(Canada) Ltd. ("Golden Brand"), manufactures nearly all of the tailored clothing
offered for sale by Moores stores. Prior to the combination with Moores, we did
not own any manufacturing facilities. A large part of Moores' growth and
profitability has resulted from the ability of Golden Brand to manufacture high
quality clothes in an efficient and timely manner. A long interruption in Golden
Brand's ability to manufacture tailored clothing could have a material negative
impact on the Moores' operations.
There are a variety of risks associated with the manufacturing business
including:
o labor,
o machinery,
o maintenance,
o product scheduling and delivery systems, and
o obtaining raw materials on a timely basis.
We could experience shortages in men's tailored clothing to sell in our
Moores stores if Golden Brand fails to meet its production goals for any
reasons, including:
o labor disputes,
o delays in production, or
o machinery breakdowns or repair problems.
Golden Brand's principal raw material is fabric. Many of Golden Brand's
suppliers have supplied fabric to Golden Brand for more than ten years. If one
of the current suppliers is unable or unwilling to provide fabric, we believe
that there are many other suppliers of fabric who could supply fabric to Golden
Brand at comparable cost. As is normal in the industry, most of Golden Brand's
supply contracts are seasonal. There could be a negative effect on the ability
of Golden Brand to meet its production goals if any of the following occurred:
o an unexpected loss of a supplier of fabric,
o a long interruption in shipments from any fabric supplier,
o an unexpected loss of any of the suppliers of raw materials
other than fabric or other finished goods, or
o a long interruption in the shipment of raw materials or
finished goods.
The negative effect would be particularly noticeable with regard to
Golden Brand's seasonal or time-sensitive products.
EXPANSION STRATEGY
A large part of our growth has resulted from the addition of new Men's
Wearhouse stores and the increased sales volume and profitability provided by
these stores. We will continue to depend on adding new stores to increase our
sales volume and profitability. We believe that our ability to increase the
number of traditional stores in the United States above 500 will be limited.
However, we anticipate that additional growth opportunities exist through the
K&G operations. When we enter new markets, we have to:
o obtain suitable store locations,
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o hire personnel,
o establish distribution methods, and
o advertise our name and our distinguishing characteristics to
consumers who may not be familiar with us.
We cannot assure you that we will be able to open and operate new
stores on a timely and profitable basis. The costs associated with opening new
stores may negatively affect our profitability. Our expansion strategy may also
be negatively impacted by conditions in the commercial real estate market
existing at the time we seek to expand.
In addition to our growth through adding new stores, the Company,
excluding Moores and K&G, has experienced increases in U.S. store sales over the
previous year for each of the past five years. Our comparable store sales
increased:
o 3.9% for 1996,
o 8.5% for 1997, and
o 10.4% for 1998.
Comparable store sales increases for Moores during the same periods
were:
o 4.5% for 1997, and
o 2.2% for 1998.
Additionally, comparable store sales increases for K&G during the same
periods were:
o 12.4% for 1996,
o 13.0% for 1997, and
o 5.7% for 1998.
We cannot assure you that we will experience similar rates of
comparable store sales growth in future periods.
We are also focused on integrating and developing operations that
target the opening price point clothing customers. The combination with K&G is
part of this focus. Value Priced Clothing, Inc. ("VPC") acquired 17 C&R stores,
six NAL stores and four Suit Warehouse stores to begin this process. We have
closed most of the C&R locations and anticipate that all C&R locations will be
closed by the end of the second quarter of 1999. In some cases, we relocated
Men's Wearhouse stores to old C&R store locations or opened SuitMax stores to
replace C&R stores. In connection with the combination with K&G, we believe we
will adopt K&G's store branding for existing SuitMax stores and for new stores
to be opened. We cannot assure you that our expansion into the opening price
point market will be successful.
In connection with the closing of the K&G transaction, our management
is evaluating K&G and VPC operations with regard to duplicate facilities within
existing markets. We expect to close approximately five stores as a result of
this process and to replace SuitMax signage in connection with adopting K&G's
store branding. Management estimates that the cost of these store closings and
the write-off of abandoned signage will be approximately $3 million before
income taxes.
SEASONALITY AND GENERAL ECONOMIC CONDITIONS
Like most retail businesses, our business is seasonal. Historically,
over 30% of our net sales and approximately 50% of our net earnings have been
made during November, December and January. Like other retail businesses, our
operations may be negatively affected by local, regional or national economic
downturns. Any economic downturn affecting us might cause consumers
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to reduce their spending, which would affect our sales. We cannot assure you
that a long economic downturn would not have a noticeable negative effect on us.
DECLINING UNIT SALES OF MEN'S TAILORED CLOTHING
According to industry sources, sales in the men's tailored clothing
market generally have declined over the past several years. We believe that this
decline is attributable primarily to: (1) men allocating less of their income to
tailored clothing and (2) certain employers relaxing their dress codes. We
believe that this decrease in sales has contributed, and will continue to
contribute, to a consolidation among retailers of men's tailored clothing.
Despite this overall decline, we have been able to increase our share of the
men's tailored clothing market. Although we believe we are in a consolidating
segment of the retailing industry, we cannot assure you that we will continue to
be able to expand our sales volume or maintain our profitability within that
segment of the industry.
COMPETITION
The men's tailored clothing market is fragmented, and we face intense
competition for:
o customers,
o access to quality merchandise, and
o suitable store locations.
We compete with:
o specialty men's clothing stores,
o traditional department stores,
o other off-price retailers and manufacturer-owned stores,
o independently-owned outlet stores,
o discount operators, and
o three-day stores.
Several of these competitors are part of large department store chains
that have much greater financial, marketing and other resources than we have
available. We cannot assure you that we will be able to compete successfully
with our competitors in the future.
POSSIBLE FLUCTUATIONS IN STOCK PRICE
The market price of our common stock has fluctuated in the past and may
change rapidly in the future depending on news announcements and changes in
general market conditions. The following factors, among others, may cause
significant fluctuations in our stock price:
o news announcements regarding quarterly or annual results of
operations,
o monthly comparable store sales,
o acquisitions,
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o competitive developments,
o litigation affecting us, or
o market views as to the prospects of retailing generally.
In addition, the shares of our common stock issued or issuable as a
result of the Moores transaction and the shares of our common stock issued in
the K&G merger represent approximately 16.4% of the outstanding shares of our
common stock. If the holders of a significant amount of those shares decide to
sell at about the same time, the price of our common stock could decline
significantly as a result.
CONTROL OF THE COMPANY
Our executive officers and directors own approximately 22.6% of the
outstanding shares of our common stock. Because the executive officers and
directors own such a large percentage of the outstanding shares of our common
stock, if they act together, they could exercise substantial control over:
o the election of all of the directors,
o the approval of any sale of assets, merger or consolidation,
and
o the outcome of all of the matters submitted to our
shareholders for a vote.
RELIANCE ON KEY PERSONNEL
Mr. George Zimmer has been very important to our success. Mr. Zimmer is
our Chairman of the Board, Chief Executive Officer and primary advertising
spokesman. The loss of Mr. Zimmer's services could have a significant negative
effect upon the Company.
Also, our continued success and the achievement of our expansion goals
are dependent upon our ability to attract and retain additional qualified
employees as we expand.
PREFERRED STOCK AUTHORIZED FOR ISSUANCE
We have available for issuance 1,999,999 shares of preferred stock,
$.01 par value per share. Our Board of Directors is authorized to issue any or
all of this preferred stock, in one or more series, without any further action
on the part of shareholders. Your rights as a holder of our common stock may be
negatively affected if we issue a series of preferred stock in the future that
has preference over the common stock with respect to the payment of dividends or
distribution upon our liquidation, dissolution or winding up.
YEAR 2000 RISKS
In mid-1997, we began a company-wide project to upgrade our information
technology. This information technology is designed to increase the efficiency
and the future productivity of our operations. By completing these changes, we
expect our computer systems to properly recognize and use dates beyond December
31, 1999. The costs related to the project are expected to be between $20.0
million and $25.0 million, including past and future expenditures. The costs
related specifically to Year 2000 issues cannot be separated from this amount.
We expect all of our business systems to be Year 2000 compliant by mid-1999. We
do not anticipate that the cost will have a material effect on our consolidated
financial position or results of operations in any given year. However, we may
not identify or be able to address all Year 2000 compliance issues. Also, we
cannot assure you that third parties with whom we do business will not
experience system failures as a result of the Year 2000 issue. We cannot predict
the consequences of noncompliance. For additional information concerning our
response to the year 2000 issues and the risk associated therewith, see
"Management's Discussion and Analysis of Financial Condition and Results of
Operations - Year 2000 Risks" in our Annual Report on Form 10-K for the year
ended January 30, 1999.
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The statements included in this section "Year 2000 Risks" are intended
to be and are designated "Year 2000 Readiness Disclosure" statements within the
meaning of the Year 2000 Information and Readiness Disclosure Act.
FORWARD-LOOKING STATEMENTS
Certain statements made in this prospectus and in other public filings and
releases by the Company contain "forward-looking" information (as defined in the
Private Securities Litigation Reform Act of 1995) that involve risk and
uncertainty. These forward-looking statements may include, but are not limited
to:
o future capital expenditures,
o acquisitions (including the amount and nature thereof),
o future sales,
o earnings,
o margins,
o costs,
o number and costs of store openings,
o demand for men's clothing,
o market trends in the retail men's clothing business,
o currency fluctuations,
o inflation, and
o various economic and business trends.
Management may make forward-looking statements orally or in writing,
including but not limited to, this prospectus and other of our filings with the
SEC under the Securities Exchange Act of 1934 and the Securities Act of 1933.
In connection with such forward-looking statements, you should consider
that they involve known and unknown risks, uncertainties and other factors that
are, in some cases, beyond our control. You are cautioned that any such
statements are not guarantees of future performance and that actual results and
trends in the future may differ materially. Differences may result from a
variety of factors including, but not limited to:
o success in integrating K&G and Moores with existing
operations,
o U.S. and international economic activity and inflation,
o success in execution of internal operating plans,
o success in execution of new store and new market expansion
plans,
o performance issues with key suppliers,
o foreign currency fluctuations,
8
o government export and import policies,
o legal proceedings,
o our ability to continue to identify and complete successful
expansions into existing markets, and
o our ability to continue to identify and complete successful
penetrations into new markets.
USE OF PROCEEDS
Because the shares of our common stock will be issued upon the exercise
of options held by the selling shareholders, we will receive no net cash
proceeds upon such issuance.
SELLING SHAREHOLDERS
The selling shareholders will be the holders of certain options to
purchase shares of our common stock. The selling shareholders include
transferees, donees, pledgees or other successors selling shares received from a
selling shareholder named below after the date of this prospectus. We will add
these transferees, donees, pledgees or other successors to the list of selling
shareholders through a prospectus supplement. The selling shareholders will
receive up to 62,134 shares of our common stock upon the exercise of the options
currently held by such holders. The selling shareholders may acquire more shares
of our common stock if we choose to pay future dividends in the form of
additional shares.
The selling shareholders may acquire the common stock offered by this
prospectus if they exercise their options for our common stock. If the selling
shareholders exercise all of their options, they would own 62,134 shares of our
common stock, which represents approximately 0.15% of our common stock currently
outstanding.
The following table sets forth the name of each selling shareholder,
the total number of shares of common stock subject to options for each selling
shareholder and the number of shares of common stock which may be offered by
each selling shareholder pursuant to this prospectus, assuming all holders
exercise their options in full. Since we are unable to predict whether any stock
dividends of our common stock will be distributed in the future, we are unable
to predict the number of shares of our common stock which will be beneficially
owned by each selling shareholder from time to time during the offering under
this prospectus. Any and all of the shares listed below may be offered for sale
by a selling shareholder from time to time and therefore we are unable to
estimate the number of shares that will be beneficially owned by each selling
shareholder upon termination of this offering. None of the selling shareholders
has held any position, office or any other material relationship with us within
the past three years.
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TOTAL NUMBER OF SHARES TO BE
SHARES SUBJECT TO OFFERED PURSUANT TO THIS
OPTIONS PROSPECTUS
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John C. Dancu 31,175 31,175
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W. Paul Ruben 3,762 3,762
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James W. Inglis 4,730 4,730
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Campbell B. Lanier, III 3,762 3,762
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Donald W. Burton 3,870 3,870
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Phillip Elkus 5,160 5,160
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Jeff Van Tosh 9,675 9,675
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PLAN OF DISTRIBUTION
These shares of our common stock are being registered to allow public
secondary trading by the holders of such shares of our common stock from time to
time after the date of this prospectus. We will not receive any of the proceeds
from the offering of these shares of common stock by the selling shareholders.
We have been advised by the selling shareholders that the shares
offered by this prospectus may be sold from time to time by or for the account
of the selling shareholders pursuant to this prospectus or pursuant to Rule 144
under the Securities Act of 1933. Sales of shares pursuant to this prospectus
may be made in the over-the-counter market, on Nasdaq or otherwise at prices and
on terms then prevailing or at prices related to the then current market price
(in each case as determined by the selling shareholders). Sales may be made
directly or through agents designated from time to time, or through dealers or
underwriters to be designated or in negotiated transactions.
The shares may be sold by any one or more of the following methods:
o a block trade (which may involve crosses) in which the
seller's broker or dealer will attempt to sell the shares as
agent but may position and resell a portion of the block as
principal to facilitate the transaction,
o purchases by a broker or dealer as principal and resale by the
broker or dealer for their account pursuant to this
prospectus,
o exchange distributions and/or secondary distributions in
accordance with the rules of Nasdaq,
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers,
o privately negotiated transactions,
o through put or call option transactions, or
o through short sales.
If applicable law requires, we will add a supplement to this prospectus
to disclose the following information about any particular offering:
o the specific shares to be sold,
o the names of the selling shareholders,
o the purchase prices and public offering prices,
o the names of any agent, dealer or underwriter making a sale of
the shares, or
o any applicable commissions or discounts.
The selling shareholders may sell shares directly to other purchasers,
through agents or through broker-dealers. Any selling agents or broker-dealers
may receive compensation in the form of underwriting discounts, concessions or
commissions from the selling shareholders, from purchasers of shares for whom
they act as agents, or from both sources. That compensation may be in excess of
customary commissions.
The selling shareholders and any broker-dealers that participate in the
distribution of the shares may be deemed to be "underwriters" within the meaning
of the Securities Act of 1933 in connection with the sales. Any commissions, and
any profit on the resale of shares, received by the selling shareholders and any
such broker-dealers may be deemed to be underwriting discounts and commissions.
We have been advised by each of the selling shareholders that they have not, as
of the date of this prospectus, entered into any arrangement with any agent,
broker or dealer for the sale of the shares.
The former affiliates of K&G are subject to affiliate agreements that
prohibit them from selling the shares covered by the options until such time as
results covering at least 30 days of combined operations of Men's Wearhouse and
K&G have been published by Men's Wearhouse, in the form of a quarterly or annual
earnings report, an effective registration statement filed with the Commission,
a report to the Commission on Form 10-K, 10-Q or 8-K, or any other public filing
or announcement which includes the combined results of operations.
We may suspend the use of this prospectus and any supplements hereto in
certain circumstances due to pending corporate developments, public filings with
the SEC or similar events.
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We will pay all costs and expenses incurred by us in connection with
the registration of the sale of shares pursuant to this prospectus. We will not
be responsible for any commissions, underwriting discounts or similar charges on
sales of the shares.
LEGAL MATTERS
Fulbright & Jaworski L.L.P., Houston, Texas has passed upon certain
legal matters with respect to the common stock for the Company. Michael W.
Conlon, a partner in the firm of Fulbright & Jaworski L.L.P., is the Secretary
of the Company.
EXPERTS
The consolidated financial statements incorporated in this prospectus
by reference from the Company's Annual Report on Form 10-K for the year ended
January 30, 1999 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein by reference,
and have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
K&G's consolidated financial statements incorporated in this prospectus
by reference from the Company's Current Report on Form 8-K filed with the SEC on
June 11, 1999 have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and is
incorporated herein by reference in reliance upon the authority of said firm as
experts in giving said report.
The consolidated financial statements of Moores as at January 31, 1998
incorporated in this prospectus by reference from the Company's Current Report
on Form 8-K filed with the SEC on February 25, 1999 have been audited by Ernst &
Young LLP, independent auditors, and have been so incorporated herein by
reference in reliance upon their report given upon their authority as experts in
accounting and auditing.
11
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YOU SHOULD RELY ONLY ON THE INFORMATION OR REPRESENTATIONS PROVIDED IN THIS
PROSPECTUS. WE HAVE AUTHORIZED NO ONE TO PROVIDE INFORMATION OTHER THAN THAT
PROVIDED IN THIS PROSPECTUS. WE HAVE AUTHORIZED NO ONE TO PROVIDE YOU WITH
DIFFERENT INFORMATION. WE ARE NOT MAKING AN OFFER OF THESE SECURITIES IN ANY
STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON
THE FRONT OF THE DOCUMENT.
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TABLE OF CONTENTS
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PAGE
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Where You Can Find More Information.............. 2
Forward-Looking Statements....................... 3
Risk Factors..................................... 3
Use of Proceeds.................................. 9
Selling Shareholders............................. 9
Plan of Distribution............................. 10
Legal Matters.................................... 11
Experts.......................................... 11
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62,134 SHARES
THE MEN'S WEARHOUSE, INC.
COMMON STOCK
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PROSPECTUS
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JUNE 14, 1999
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with this Offering are:
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Securities and Exchange Commission Registration Fee.............................................. $ 478
Nasdaq Listing Fee............................................................................... 0
Legal Fees and Expenses.......................................................................... 10,000
Accounting Fees and Expenses..................................................................... 10,000
Blue Sky Fees and Expenses (including legal fees)................................................ 1,000
Printing Expenses................................................................................ 1,000
Transfer Agent and Registrar Fees................................................................ 1,000
Miscellaneous.................................................................................... 1,522
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TOTAL.................................................................................. $ 25,000
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ITEM 15. 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.
II-1
ITEM 16. EXHIBITS.
2.1 -- Agreement and Plan of Merger dated March 3, 1999,
among The Men's Men's Wearhouse, Inc., TMW
Combination Company and K&G Men's Center, Inc.
(incorporated by reference from Exhibit 2.2 to the
Registrant's Annual Report on Form 10-K for the
fiscal year ended January 30, 1999).
2.2 -- Amendment No. 1 to Agreement and Plan of Merger
dated March 3, 1999, among The Men's Wearhouse, Inc.,
TMW Combination Company and K&G Men's Center, Inc.
(incorporated by reference from Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K for the
fiscal year ended January 30, 1999).
3.1 -- 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).
3.2 -- 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).
3.3 -- 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 Registrant's Annual
Report on Form 10-K for the fiscal year ended January
31, 1999).
4.1 -- Restated Articles of Incorporation (included as
Exhibit 3.1).
4.2 -- By-laws, as amended (included as Exhibit 3.2).
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 -- Registration Rights Agreement dated as of November
18, 1998, by and among The Men's Wearhouse, 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.
4.5 -- Support Agreement dated February 10, 1999, between
The Men's Wearhouse, Inc., 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 Registrant's
Current Report on Form 8-K (Registration No.
333-72549)).
4.6 -- Revolving Credit Agreement dated as of February 5,
1999, by and among The Men's Wearhouse, Inc. 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
Registrant's Annual Report on Form 10-K for the
fiscal year Ended January 30, 1999).
4.7 -- Term Credit Agreement dated as of February 5,
1999, by and among The Men's Wearhouse, Inc. and Bank
of America Canada. and the Banks listed Therein,
including form of Term Note (incorporated by
reference from Exhibit 4.14 to the Registrant's
Annual Report on Form 10-K for the fiscal year Ended
January 30, 1999).
4.8 -- Revolving Credit Agreement dated as of February
10, 1999, by and among The Men's Wearhouse, Inc. and
NationsBank of Texas N.A. and the Banks listed
Therein, including form of Revolving Note
(incorporated by reference from Exhibit 4.15 to the
Registrant's Annual Report on Form 10-K for the
fiscal year Ended January 30, 1999).
4.9 -- Certificate of Designation, Preferences,
Limitations and Relative Rights of the Series A
Special Voting Preferred Stock (included as Exhibit
3.3).
*5.1 -- Opinion of Fulbright & Jaworski L.L.P.
9.1 -- Voting Trust Agreement dated February 10, 1999, by
and between The Men's Wearhouse, Inc., Golden Moores
Company, Moores Retail Group Inc. and The Trust
Company of Bank of Montreal (incorporated by
reference from Exhibit 9.1 To the Registrant's
Current Report on Form 8-K (Registration No.
333-72549)).
*23.1 -- Consent of Fulbright & Jaworski L.L.P. (included
in Exhibit 5.1).
*23.2 -- Consent of Deloitte & Touche LLP.
*23.3 -- Consent of Arthur Andersen LLP.
*23.4 -- Consent of Ernst & Young LLP.
*24.1 -- Powers of Attorney from certain members of the
Board of Directors of the Company (contained on page
II-4 of this Registration Statement as originally
filed).
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* Included herein.
As permitted by Item 601(b)(4)(iii)(A) of Regulation S-K, the
Registrant has not filed with this Registration Statement certain instruments
defining the rights of holders of long-term debt of the Registrant and its
subsidiaries because the total amount of securities authorized under any of such
instruments does not exceed 10% of the total assets of the Registrant and its
subsidiaries on a consolidated basis. The Registrant agrees to furnish a copy of
any such agreement to the Commission upon request.
II-2
ITEM 17. 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 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 a 20 percent 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 (i) and (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 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.
II-3
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-3 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 June 11, 1999.
THE MEN'S WEARHOUSE, INC.
By: /s/ GEORGE ZIMMER
--------------------------------------
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.
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SIGNATURE TITLE DATE
--------- ----- ----
/s/ GEORGE ZIMMER Chairman of the Board, Chief June 11, 1999
-------------------------------- Executive Officer and Director
George Zimmer (Principal Executive Officer)
/s/ DAVID EDWAB President and Director June 11, 1999
-------------------------------
David Edwab
/s/ GARY G. CKODRE Vice President-Finance and June 11, 1999
-------------------------------- Principal Financial and
Gary G. Ckodre Accounting Officer (Principal
Financial and Accounting Officer)
/s/ RICHARD E. GOLDMAN Executive Vice President and June 11, 1999
-------------------------------- Director
Richard E. Goldman
/s/ ROBERT E. ZIMMER Senior Vice President -- Real June 11, 1999
-------------------------------- Estate and Director
Robert E. Zimmer
/s/ JAMES E. ZIMMER Senior Vice President -- June 11, 1999
-------------------------------- Merchandising and Director
James E. Zimmer
/s/ HARRY M. LEVY Executive Vice President -- June 11, 1999
-------------------------------- Planning and Systems and
Harry M. Levy Director
II-4
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/s/ STEPHEN H. GREENSPAN Chief Executive Officer - Value June 11, 1999
-------------------------------- Priced Clothing Division and
Stephen H. Greenspan Director
/s/ RINALDO BRUTOCO Director June 11, 1999
--------------------------------
Rinaldo Brutoco
/s/ MICHAEL L. RAY Director June 11, 1999
--------------------------------
Michael L. Ray
/s/ SHELDON I. STEIN Director June 11, 1999
--------------------------------
Sheldon I. Stein
II-5
INDEX TO EXHIBITS
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NUMBER EXHIBIT
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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.
23.3 Consent of Arthur Andersen LLP.
23.4 Consent of Ernst & Young LLP.
24.1 Powers of Attorney from certain members of the Board of
Directors of the Company (contained on page II-4).
Dates Referenced Herein and Documents Incorporated by Reference
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