As filed with the Securities and Exchange Commission on November 27, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HANOVER DIRECT, INC.
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 13-0853260
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(State or Other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) Number)
115 RIVER ROAD, BUILDING 10
EDGEWATER, NEW JERSEY 07020
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(Address of Principal Executive Offices ) (Zip Code)
2000 MANAGEMENT STOCK OPTION PLAN
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(Full Title of the Plan)
SARAH HEWITT, ESQ.
BROWN RAYSMAN MILLSTEIN FELDER & STEINER LLP
900 THIRD AVENUE
NEW YORK, NEW YORK 10022
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(Name and Address of Agent For Service)
(212) 895-2000
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Telephone Number, Including Area Code, of Agent for Service
CALCULATION OF REGISTRATION FEE
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Proposed Proposed Maximum Proposed Maximum
Title of Securities Maximum Amount Offering Price Per Aggregate Offering Amount of
To Be Registered To Be Registered Share (1) Price Registration Fee
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Common Stock,
$.66 2/3 Par Value 5,000,000 $0.215 $1,075,000 $245.10
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(1) The price is estimated pursuant to Rule 457(h) of the Securities Act of
1933, as amended (the "Act"), solely for the purpose of calculating the
registration fee and is the product resulting from multiplying 5,000,000,
the number of shares registered by this registration statement as to which
options may be granted under the 2000 Management Stock Option Plan, by
$0.215, the average of the high and low prices of Hanover Direct, Inc.
Common Stock as reported on the American Stock Exchange on November 25,
2002.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with the rules and regulations of the Securities and
Exchange Commission, the documents containing the information called for in Part
I of Form S-8 will be sent or given to individuals who are eligible to
participate in our 2000 Management Stock Option Plan. Such information is not
being filled with or included in this Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Hanover Direct, Inc. (the "Company") are
incorporated herein by reference:
(i) The Company's Annual Report on Form 10-K for the fiscal year ended
December 29, 2001.
(ii) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 30, 2002, June 29, 2002 (as amended) and September 28,
2002.
(iii) The Company's Current Reports on Form 8-K filed on March 29, 2002,
April 1, 2002, May 8, 2002, May 10, 2002, May 15, 2002, May 16,
2002, May 20, 2002, May 21, 2002, August 2, 2002, August 8, 2002,
August 13, 2002, October 2, 2002, October 4, 2002, October 30, 2002,
November 6, 2002, November 7, 2002, November 8, 2002, November 8,
2002, November 12, 2002, November 21, 2002 and November 21, 2002.
(iv) The Company's Proxy Statement dated April 12, 2002.
(v) The description of the Company's Common Stock contained in the
latest prospectus filed pursuant to Rule 424(b) under the Act that
contains audited financial statements for the Company's latest
fiscal year for which such statements have been filed, which
prospectus is dated July 19, 1996 (Registration No. 333-2743).
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange of 1934, prior to the filing of a post-effective amendment indicating
that all of the securities offered hereunder have been sold or deregistering all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents. Any statement contained in a document incorporated by
reference in this Registration Statement 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 subsequently filed document that is also
incorporated by reference herein modifies or supersedes such statement. Any
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
Incorporated by reference to the description of the Common Stock of the
Company contained in the 424(b) Prospectus described in Item 3(v) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares being offered hereby and certain other legal
matters in connection with the offering of such securities will be passed upon
for the Company by Brown Raysman Millstein Felder & Steiner LLP, securities
counsel to the Company. Sarah Hewitt, a partner in Brown Raysman Millstein
Felder & Steiner LLP, the Company's counsel, is the Secretary of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Except as prohibited by Section 145 of the Delaware General Corporation
Law, every director and officer of the Company shall be entitled as a matter of
right to be indemnified by the Company against reasonable expenses and any
liability paid or incurred by such person in connection with any actual or
threatened claim, action, suit or proceeding, civil, criminal, administrative,
investigative or other, whether brought by or in the right of the Company or
otherwise, in which he or she may be involved, as a party or otherwise, by
reason of such person being or having been a director or officer of the Company
or by reason of the fact that such person is or was serving at the request of
the Company as a director, officer, employee, fiduciary or other representative
of the Company or another corporation, partnership, joint venture, trust,
employee benefit plan or other entity (such claim, action, suit or proceeding
hereinafter being referred to as an "action"); provided, however, that no such
right of indemnification shall exist with respect to an action brought by a
director or officer against the Company other than in a suit for indemnification
as provided hereunder. Such indemnification shall include the right to have
expenses incurred by such person in connection with an action paid in advance by
the Company prior to final disposition of such action, subject to such
conditions as may be prescribed by law. As used herein, "expense" shall include,
among other things, fees and expenses of counsel selected by such person, and
"liability" shall include amounts of judgments, excise taxes, fines and
penalties, and amounts paid in settlement.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
4.1 2000 Management Stock Option Plan
5 Opinion of Brown Raysman Millstein Felder & Steiner LLP
23.1 Consent of Brown Raysman Millstein Felder & Steiner LLP (included in
Exhibit 5)
24 Power of Attorney (included in signature page)
The consolidated financial statements and schedule included in the
Company's Annual Report on Form 10-K for the fiscal year ended December 30, 2001
were audited by Arthur Andersen LLP, independent public accountants. The Company
has incorporated such Annual Report on Form 10-K herein by reference, and has
relied on the report dated March 16, 2002 of Arthur Andersen LLP included
therein. The Company has been unable to obtain, after reasonable efforts, the
written consent of Arthur Andersen to our naming it as an expert and as having
audited the consolidated financial statements and incorporating its report by
reference in this Registration Statement. This lack of consent may limit your
ability to recover damages from Arthur Andersen under Section 11 of the
Securities Act for any untrue statement of material fact contained in the
financial statements audited by Arthur Andersen or any omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
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 together, represent a fundamental
change in the information 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 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 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) of this section do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3 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 that are
incorporated by reference in the 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 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 section 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 Securities Act of 1933 and is, therefore, unenforceable. In the event 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 in the successful defense of any action, suit or proceeding)
is asserted by such director, officer, or controlling person of the registrant
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.
* * *
The Company's Board of Directors, upon recommendation of its Audit
Committee, ended the engagement of Arthur Andersen LLP ("Arthur Andersen") as
the Company's independent public accountants, effective on the filing on May 14,
2002 of the Company's Form 10-Q for the fiscal quarter ended March 30, 2002, and
has authorized the engagement of KPMG LLP ("KPMG") to serve as the Company's
independent public accountants for the fiscal year ending December 28, 2002.
During the Company's two most recent fiscal years ended December 30, 2000
and December 29, 2001, and the subsequent interim period through May 14, 2002,
there were no disagreements between the Company and Arthur Andersen on any
matter of accounting principles or practices, financial statement disclosure, or
auditing scope or procedure, which disagreements, if not resolved to Arthur
Andersen's satisfaction, would have caused Arthur Andersen to make reference to
the subject matter of the disagreement in connection with its reports.
The audit reports of Arthur Andersen on the consolidated financial
statements of the Company and subsidiaries as of and for the fiscal years ended
December 30, 2000 and December 29, 2001 did not contain any adverse opinion or
disclaimer of opinion, nor were they qualified or modified as to uncertainty,
audit scope, or accounting principles.
The Company has provided Arthur Andersen with a copy of the foregoing
disclosures. A letter from Arthur Andersen, stating its agreement with these
statements, was attached as Exhibit 16.2 to the Company's Current Report on Form
8-K/A1 filed on May 16, 2002.
None of the reportable events described under Item 304(a)(1)(v) of
Regulation S-K occurred within the Company's two most recent fiscal years and
the subsequent interim period through May 14, 2002.
During the Company's most recent fiscal year ended December 29, 2001, and
the subsequent interim period through May 14, 2002, the Company did not consult
with KPMG regarding any of the matters or events set forth in Item 304(a)(2)(i)
and (ii) of Regulation S-K.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Edgewater, New Jersey on the 27th day of November, 2002.
HANOVER DIRECT, INC.
By: /s/ Thomas C. Shull
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Name: Thomas C. Shull
Title: Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Edward M. Lambert and William C.
Kingsford, or either of them, the undersigned's true and lawful attorney-in-fact
and agent with full power of substitution and resubstitution, for him or her and
in his or her 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 with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting said
attorney-in-fact and agent, and each 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 the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or either of them, or their or his or her 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 indicated on the 27th day of November, 2002:
SIGNATURE TITLE
/s/ Thomas C. Shull Chairman of the Board, Director,
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Thomas C. Shull President and Chief Executive Officer
/s/ Edward M. Lambert Executive Vice President and
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Edward M. Lambert Chief Financial Officer
/s/ E. Pendleton James
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E. Pendleton James Director
/s/ J. David Hakman
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J. David Hakman Director
/s/ Kenneth J. Krushel
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Kenneth J. Krushel Director
/s/ Basil P. Regan
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Basil P. Regan Director
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
4.1 2000 Management Stock Option Plan
5 Opinion of Brown Raysman Millstein Felder & Steiner LLP
23.1 Consent of Brown Raysman Millstein Felder & Steiner LLP (included in Exhibit 5)
24 Power of Attorney (included in signature page)