-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DInOz1Z2myv6qIFWns20G5mHdUugc/jspl/ND/1CFa5mvf35l4PZxP9Dh3yWpWli YDYEcESvIER03djRJ0xOkw== 0000950123-04-004604.txt : 20040414 0000950123-04-004604.hdr.sgml : 20040414 20040414160231 ACCESSION NUMBER: 0000950123-04-004604 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040414 EFFECTIVENESS DATE: 20040414 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HANOVER DIRECT INC CENTRAL INDEX KEY: 0000320333 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-CATALOG & MAIL-ORDER HOUSES [5961] IRS NUMBER: 138053260 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-114463 FILM NUMBER: 04733166 BUSINESS ADDRESS: STREET 1: 1500 HARBOR BLVD CITY: WEEHAWKEN STATE: NJ ZIP: 07087 BUSINESS PHONE: 2018653800 MAIL ADDRESS: STREET 1: 1500 HARBOR BLVD CITY: WEEHAWKEN STATE: NJ ZIP: 07087 FORMER COMPANY: FORMER CONFORMED NAME: HORN & HARDART CO /NV/ DATE OF NAME CHANGE: 19920703 S-8 1 y95456sv8.txt FORM S-8 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 --------------------------- (Address of Principal Executive Offices) (Zip Code) Stock Option Agreement with Thomas C. Shull --------------------------- (Full Title of the Plan) Sarah Hewitt, Esq. Brown Raysman Millstein Felder & Steiner LLP 900 Third Avenue New York, New York 10022 --------------------------- (Name and Address of Agent For Service) (212) 895-2000 --------- 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. ii 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 II-1 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. II-2 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.) II-3 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 II-4 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. II-5 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 ------------------- 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
II-6
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
II-7 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) EX-5 3 y95456exv5.txt OPINION OF BROWN RAYSMAN ET AL. EXHIBIT 5 April 13, 2004 Hanover Direct, Inc. 115 River Road, Building 10 Edgewater, New Jersey 07020 Ladies and Gentlemen: We refer to the Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), by Hanover Direct, Inc., a Delaware corporation (the "Company"), relating to an aggregate of 2,700,000 shares of the Company's Common Stock, par value $.662/3 par value per share (the "Common Stock"), to be issued upon the exercise of options granted pursuant to the Stock Option Agreement made as of December 5, 2000 by the Company in favor of Thomas C. Shull, as amended by Amendment No. 1 thereto dated as of September 1, 2002 (collectively, the "Stock Option Agreement"). Certain of the terms of the options are governed by the provisions of the Employment Agreement dated as of September 1, 2002 between Thomas C. Shull and the Company and Amendment No. 3 to Employment Agreement effective as of August 3, 2003 between Thomas C. Shull and the Company (collectively, the "Employment Agreement"). The Stock Option Agreement and the Employment Agreement are collectively referred to herein as the "Agreement." We have examined originals or copies authenticated to our satisfaction of such corporate records and other documents, and we have made such examinations of law and fact, as we have deemed necessary or appropriate in order to render the opinions hereinafter expressed. In such examinations we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, and the authenticity of the originals of all such copies. We express no opinion as to any laws other than the Delaware General Corporation Law. In rendering the opinion set forth below, we have assumed that (a) no option granted under the Agreement has an exercise price that is below the par value of the shares of Common Stock at the time of exercise or (b) the shares issued pursuant to the options granted under the Agreement are issued from shares of Common Stock held in treasury by the Company and such treasury shares, when originally issued by the Company, were fully-paid for. Based upon the foregoing, we are of the opinion that the shares of Common Stock being registered pursuant to the Registration Statement, when issued and paid for in accordance with the terms of the Agreement, will be validly issued, fully paid and non-assessable. We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we come within the category of persons whose consent is required to be filed with the Registration Statement under the provisions of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Brown Raysman Millstein Felder & Steiner LLP EX-23.1 4 y95456exv23w1.txt CONSENT OF KPMG LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS The Board of Directors and Stockholders Hanover Direct, Inc.: We consent to the use of our audit report dated April 2, 2004, with respect to the consolidated balance sheets of Hanover Direct, Inc. as of December 27, 2003 and December 28, 2002 and the related consolidated statements of income (loss), shareholders' deficiency, and cash flows for the years then ended, and the related 2002 and 2003 consolidated financial statement schedules, incorporated herein by reference. Our report dated April 2, 2004 contains an explanatory paragraph relating to the fact that the 2001 consolidated financial statements and financial statement schedule of Hanover Direct, Inc. were audited by other auditors who have ceased operations. Our report also refers to the adoption of the provisions of Statement of Financial Accounting Standards No. 150, "Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity" in 2003 and of Statement of Financial Accounting Standards No. 142, "Goodwill and Other Intangible Assets" in 2002. Our report also indicates that the Company's consolidated balance sheet as of December 28, 2002 has been restated to classify certain long-term debt as current. KPMG LLP New York April 13,2004 -----END PRIVACY-ENHANCED MESSAGE-----