Registration No. 333 -
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UNITED STATES
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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HARTMARX CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 36-3217140
(State of incorporation) (I.R.S. Employer Identification No.)
101 North Wacker Drive, Chicago, Illinois 60606
(Address of Principal Executive Offices) (Zip Code)
THE HARTMARX SAVINGS INVESTMENT AND
STOCK OWNERSHIP PLAN
(Full title of Plan)
TARAS R. PROCZKO
Senior Vice President, General Counsel and Secretary
Hartmarx Corporation
101 North Wacker Drive
Chicago, Illinois 60606
312/372-6300
(Name, address and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Per Aggregate Registration
Securities Being Registered Registered (1) Share (3) Offering Price (3) Fee (4)
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Common Stock, par value
$2.50 per share (including
Preferred Stock Purchase 500,000(2) $ 3.085 $ 1,542,500.00 $ 141.91
Rights)
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(1) The number of shares being registered represents the maximum number of
shares that may be purchased by employees with employee contributions from
time to time under the Plan until a new registration statement becomes
effective. This Registration Statement also covers the stock purchase
rights (the "Rights") of the Registrant which are presently attached to and
trade with the Common Stock of the Registrant. Any value attributable to
the Rights is reflected in the market price of the Common Stock. Such
additional securities are also being registered hereby as may become
issuable under the Plan as a result of applicable anti-dilution provisions.
(2) 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 Plan described herein.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 on the basis of
the average of the high and low prices of the Common Stock on the New York
Stock Exchange on July 30, 2003.
(4) The registration fee has been calculated pursuant to Section 6(b) of the
Securities Act as follows: 0.0092% of $1,542,500.00, the Proposed Maximum
Aggregate Offering Price of the shares of common stock being registered
hereby.
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PURSUANT TO RULE 429, THE PROSPECTUS WHICH IS PART OF THIS REGISTRATION
STATEMENT WILL BE ALSO BE USED IN CONNECTION WITH SECURITIES REGISTERED PURSUANT
TO REGISTRATION STATEMENT NOS. 2-32692, 2-44774, 2-53426, 2-64613, 2-83433,
33-6194, 33-42202 and 333-03169.
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THE HARTMARX SAVINGS INVESTMENT AND STOCK OWNERSHIP PLAN
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INCORPORATION OF CONTENTS OF PRIOR
REGISTRATION STATEMENTS
The contents of registration statements Nos. 2-32692, 2-44774, 2-53426, 2-64613,
2-83433, 33-6194, 33-42202 and 333-03169 are incorporated herein by reference.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the Company (Commission File 1-8501) pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
November 30, 2002.
(b) All other reports of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
Company's Annual Report on Form 10-K referred to in (a) above, including the
Company's Quarterly Report on Form 10-Q for the quarterly period ended February
28, 2003, the Company's Quarterly Report on Form 10-Q for the quarterly period
ended May 31, 2003, and the Company's Current Report on Form 8-K, dated March
17, 2003.
(c) Annual Report of Form 11-K of the Hartmarx Savings Investment and
Stock Ownership Plan for the year ended December 31, 2002.
(d) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-B, dated July 8, 1983, filed with the
Commission pursuant to Section 12(b) of the Exchange Act; and the description of
the Rights contained in the Company's Registration Statement on Form 8-A/A,
dated May 2, 2000, filed with the Commission pursuant to Section 12(b) of the
Exchange Act.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration
Statement prior to the filing of a post-effective amendment to this Registration
Statement 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 herein and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the issuance of the shares of Common Stock, and the Rights
attached to such shares, offered hereby will be passed upon for the Company by
Taras R. Proczko, Senior Vice President, General Counsel and Secretary of the
Company. As of July 31, 2003, Mr. Proczko is the beneficial holder of
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38,641 shares of Common Stock, holds options to purchase 70,500 shares of Common
Stock, and is eligible to participate in the Plan.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, or DGCL, grants the
Company the power to indemnify each person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative by
reason of the fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding 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 Company, and with respect to any criminal action or proceeding,
had no reasonable cause to believe his/her conduct was unlawful, provided,
however, no indemnification shall be made in connection with any proceeding
brought by or in the right of the Company where the person involved is adjudged
to be liable to the Company except to the extent approved by a court.
Under the Company's certificate of incorporation and bylaws, the Company is
required to indemnify, to the fullest extent permitted by law, any person who is
or was made or is threatened to be made a party to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, because
the person is or was a director or officer of the Company or is or was serving
as a director, officer, employee or agent for another entity at the request of
the Company against liability incurred in such action, suit or proceeding. The
Company's bylaws require the Company to advance expenses, as incurred, in
connection with any such proceeding, subject to the limitations under Delaware
law. The Company has also entered into indemnification agreements with certain
of its officers and directors to contractually provide indemnification coverage
consistent with the Company's certificate of incorporation and bylaws.
In addition, the Company maintains officers' and directors' liability
insurance insuring the Company's officers and directors against certain
liabilities and expenses incurred by them in their capacities as such.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description of Exhibit
4.1 Amended and Restated Rights Agreement, dated as of
April 13, 2000, by and between the Company and First
Chicago Trust Company of New York, as Rights Agent
(incorporated by reference to Exhibit 4.1 to the
Company's Form 8-A/A, filed May 2, 2000).
4.2 First Amendment to Amended and Restated Rights
Agreement dated as of December 6, 2001, by and between
the Company and First Chicago Trust Company of New York,
as Rights Agent (incorporated by reference to Exhibit
4-A-1 to the Company's Form 10-K for the year ended
November 30, 2001).
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4.3 The Hartmarx Savings Investment and Stock Ownership
Plan, as amended and restated effective as of December
31, 2000.
4.4 First Amendment to Hartmarx Savings Investment and Stock
Ownership Plan dated as of October 30, 2002.
4.5 Second Amendment to Hartmarx Savings Investment and Stock
Ownership Plan dated as of December 30, 2002.
5.1 Opinion of Taras R. Proczko, Senior Vice President,
General Counsel and Secretary of the Company.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Taras R. Proczko (included in Exhibit 5.1).
24.1 Power of Attorney
(1) File No. 1-8501
An opinion of counsel concerning compliance with the requirements of
ERISA and an Internal Revenue Service ("IRS") determination letter are not being
filed because (i) the IRS issued its favorable determination letter on November
8, 2002, regarding the qualification under Section 401(a) of the Internal
Revenue Code (the "Code") of the Plan, as amended effective October 30, 2002,
and under Section 4975(e)(7) of the Code with respect to the Trust, as amended
effective as of October 30, 2002, and (ii) the Registrant undertakes to submit
the Plan and any amendment thereto to the IRS in a timely manner and will make
all changes required by the IRS to maintain such qualification.
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;
(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. 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
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
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 paragraphs (a)(1)(i) and (a)(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
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
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(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(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.
(b) 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 15(d) of the Securities
Exchange Act of 1934 (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 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.
(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 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
The Registrant
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 of the requirements for filing this Registration Statement 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 Chicago, State of
Illinois, on the 5th day of August, 2003.
HARTMARX CORPORATION
By: /s/ TARAS R. PROCZKO
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Taras R. Proczko,
Senior Vice President, General
Counsel and Secretary
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 on this 5th day of August, 2003.
Signature Title
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*
-------------------- Director, Chairman of
Elbert O. Hand the Board
*
-------------------- Director, President and
Homi B. Patel Chief Executive Officer
(Principal Executive Officer)
*
-------------------- Director
Samaual A.T. Bakhsh
*
-------------------- Director
Jeffrey A. Cole
*
-------------------- Director
James P. Dollive
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*
-------------------- Director
Raymond F. Farley
*
-------------------- Director
Donald P. Jacobs
*
-------------------- Director
Dipak C. Jain
*
-------------------- Director
Michael B. Rohlfs
*
-------------------- Director
Stuart L. Scott
*
-------------------- Executive Vice President
Glenn R. Morgan and Chief Financial Officer
(Principal Financial Officer)
*
-------------------- Vice President, Controller
Andrew A. Zahr and Chief Accounting Officer
(Principal Accounting Officer)
*By: /s/ TARAS R. PROCZKO
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Taras R. Proczko
Attorney-in-Fact
The Plan
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois, on the 5th day of August, 2003.
THE HARTMARX SAVINGS INVESTMENT AND
STOCK OWNERSHIP PLAN
By: /s/ TARAS R. PROCZKO
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Taras R. Proczko,
Senior Vice President, General Counsel and
Secretary, Hartmarx Corporation and
Member, Hartmarx Corporation Plan
Administration Committee
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EXHIBIT INDEX
Exhibit No. Description of Exhibit
4.1 Amended and Restated Rights Agreement, dated as of
April 13, 2000, by and between the Company and First
Chicago Trust Company of New York, as Rights Agent
(incorporated by reference to Exhibit 4.1 to the
Company's Form 8-A/A, filed May 2, 2000).
4.2 First Amendment to Amended and Restated Rights
Agreement dated as of December 6, 2001, by and between
the Company and First Chicago Trust Company of New York,
as Rights Agent (incorporated by reference to Exhibit
4-A-1 to the Company's Form 10-K for the year ended
November 30, 2001).
4.3 The Hartmarx Savings Investment and Stock Ownership
Plan, as amended and restated effective as of December
31, 2000.
4.4 First Amendment to Hartmarx Savings Investment and Stock
Ownership Plan dated as of October 30, 2002.
4.5 Second Amendment to Hartmarx Savings Investment and Stock
Ownership Plan dated as of December 30, 2002.
5.1 Opinion of Taras R. Proczko, Senior Vice President,
General Counsel and Secretary of the Company.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Taras R. Proczko (included in Exhibit 5.1).
24.1 Power of Attorney
(1) File No. 1-8501
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