As filed with the Securities and Exchange Commission on April 14, 2004
Registration No. 333-______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1993
HANOVER DIRECT, INC.
----------------------
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-08553260
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
115 River Road, Building 10
Edgewater, New Jersey 07020
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(Address of Principal Executive Offices) (Zip Code)
Stock Option Agreement with Thomas C. Shull
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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
Title of Securities to Amount to be Proposed Maximum Offering Proposed Maximum Amount of
be Registered Registered Price Per Share(1) Aggregate Offering Price Registration Fee
Common Stock, $.66 2/3 2,700,000 $0.25 (1) $675,000 $86
par value
(1) Calculated pursuant to Rule 457(h)(1) under the Securities Act of 1933 and
based upon the exercise price of the options issuable pursuant to the
Stock Option Agreement with Thomas C. Shull.
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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 given to all persons who receive shares of Common Stock of
the Company that are registered on this Registration Statement. Such information
is not being filed with or included in this Registration Statement.
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:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 27, 2003.
(b) The Company's Current Reports on Form 8-K that have been filed with
the Securities and Exchange Commission since December 27, 2003
(c) The description of the Company's common stock, par value $0.662/3 per
share, contained in its Registration Statement on Form 8-B filed with the
Securities and Exchange Commission on June 14, 1993 pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended, and any amendments and reports
filed for the purpose of updating that description.
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 or
deemed to be 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 which also is or deemed to be 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 SECURITITES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters in connection with the share of Common Stock offered
hereby have been passed upon for the Company by Brown Raysman Millstein Felder &
Steiner LLP, counsel to the Company. Sarah Hewitt, a partner in Brown Raysman
Millstein Felder & Steiner LLP, is an Assistant Secretary of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides that the
Company shall have the power to indemnify any person who was or is a party or is
threatened to be made a party
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to any threatened, pending or completed action, suit or proceeding (other than
an action by or in the right of the Company) by reason of the fact that the
person is or was a director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, judgements, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person
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 the person's conduct was unlawful. In addition, Section 145 of the
Delaware General Corporation Law provides that the Company shall have the power
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Company to procure a judgement in its favor by reason of the fact that
the person is or was a director, officer, employee or agent of the Company, or
is or was serving at the request of the Company as director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the Company, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Company unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Article Fifth of the Restated Certificate of Incorporation of the Company
and Article IV of the By-Laws of the Company each provide that, except as
prohibited by 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 in the Restated
Certificate of Incorporation and By-Laws of the Company. 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 in
Article Fifth of the Restated Certificate of Incorporation and Article IV of the
By-Laws of the Company, the term "expenses" includes, among other things, fees
and expenses of counsel selected by such person, and the term "liability"
includes the amounts of judgments, excise taxes, fines and penalties, and
amounts paid in settlement.
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Section 102(b)(7) of the Delaware General Corporation Law provides that
the Company may eliminate or limit the personal liability of a director to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director, provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
willful or negligent conduct in paying dividends or repurchasing stock out of
other than lawfully available funds, or (iv) for any transaction from which the
director derived an improper personal benefit.
Article Fifth of the Restated Certificate of Incorporation of the Company
eliminates the liability of a director of the Company for monetary damages for
breach of fiduciary duty as a director to the extent permitted by Section
102(b)(7) of the Delaware General Corporation Law.
The Company's employment agreement with its President provides that, if he
is threatened with or made a party to, or called as a witness or deposed or
subpoenaed in, any action, suit or other legal, administrative or governmental
proceeding or other legal process by reason of his affiliation with the Company
or any of its affiliates, the Company shall indemnify him and hold him harmless
to the maximum extent allowed by the Company's certificate of incorporation and
bylaws against all liabilities, obligations, losses, damages, penalties, actions
judgments, suits, claims, disbursements and expenses reasonably incurred by him
(collectively, "losses"), to the extent the same are not paid under the
Company's directors' and officers' liability insurance; provided, however, that
he shall not be entitled to indemnification to the extent any such losses result
from his gross negligence, willful misconduct or criminal conviction as
determined by a court of competent jurisdiction.
The Company also maintains directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
No. Description
--- -----------
4.1 Stock Option Agreement made as of December 5, 2000 by the
Company in favor of Thomas C. Shull. (Incorporated by
reference to the Company's Annual Report on Form 10-K for the
fiscal year ended December 28, 2002.)
4.2 Amendment No. 1 dated as of September 1, 2002 to Stock Option
Agreement between the Company and Thomas C. Shull.
(Incorporated by reference to the Company's Annual Report on
Form 10-K for the fiscal year ended December 28, 2002.)
4.3 Employment Agreement dated as of September 1, 2002 between
Thomas C. Shull and the Company. (Incorporated by reference to
the Company's Quarterly Report on Form 10-Q for the quarterly
period ended June 29, 2002.)
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4.4 Amendment No. 3 to Employment Agreement effective as of August
3, 2003 between Thomas C. Shull and the Company. (Incorporated
by reference to the Company's Quarterly Report on Form 10-Q
for the quarterly period ended June 28, 2003.)
5 Opinion of Brown Raysman Millstein Felder & Steiner LLP
23.1 Consent of KPMG LLP.
23.2 Consent of Brown Raysman Millstein Felder & Steiner LLP
(included in Exhibit 5)
24 Power of Attorney (included in signature page)
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 this Registration Statement (or the most recent post-
effective amendment thereof) which, individually or together, represent a
fundamental change in the information in this 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 (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 by the registrant pursuant to
section 13 or section 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 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
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pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in this 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.
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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 the city of Edgewater, State of New Jersey on the 13th day of
April, 2004.
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 Charles E. Blue and Michael D. Contino,
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 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 13th day of April, 2004.
SIGNATURE TITLE
- --------- -----
/s/ Thomas C. Shull Chairman of the Board, President, Chief
- ----------------------------------- Executive Officer and Director (principal
Thomas C. Shull executive officer)
/s/ Charles E. Blue Senior Vice President and Chief Financial
- ----------------------------------- Officer (principal financial officer)
Charles E. Blue
/s/ William C. Kingsford Senior Vice President of Treasury and Control
- ----------------------------------- (principal accounting officer)
William C. Kingsford
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SIGNATURE TITLE
- --------- -----
/s/ Basil P. Regan Director
- -----------------------------------
Basil P. Regan
/s/ Robert H. Masson Director
- -----------------------------------
Robert H. Masson
/s/ William Wachtel Director
- -----------------------------------
William Wachtel
/s/ A. David Brown Director
- -----------------------------------
A. David Brown
/s/ Donald Hecht Director
- -----------------------------------
Donald Hecht
/s/ Stuart Feldman Director
- -----------------------------------
Stuart Feldman
/s/ Wayne P. Garten Director
- -----------------------------------
Wayne P. Garten
Director
- -----------------------------------
Paul S. Goodman
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INDEX TO EXHIBITS
Exhibit
No. Description
4.1 Stock Option Agreement made as of December 5, 2000 by the
Company in favor of Thomas C. Shull. (Incorporated by
reference to the Company's Annual Report on Form 10-K for the
fiscal year ended December 28, 2002.)
4.2 Amendment No. 1 dated as of September 1, 2002 to Stock Option
Agreement between the Company and Thomas C. Shull.
(Incorporated by reference to the Company's Annual Report on
Form 10-K for the fiscal year ended December 28, 2002.)
4.3 Employment Agreement dated as of September 1, 2002 between
Thomas C. Shull and the Company. (Incorporated by reference to
the Company's Quarterly Report on Form 10-Q for the quarterly
period ended June 29, 2002.)
4.4 Amendment No. 3 to Employment Agreement effective as of August
3, 2003 between Thomas C. Shull and the Company. (Incorporated
by reference to the Company's Quarterly Report on Form 10-Q
for the quarterly period ended June 28, 2003.)
5 Opinion of Brown Raysman Millstein Felder & Steiner LLP
23.1 Consent of KPMG LLP
23.2 Consent of Brown Raysman Millstein Felder & Steiner LLP
(included in Exhibit 5)
24 Power of Attorney (included in signature page)