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As filed with the Securities and Exchange Commission on February 6, 2004
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
CASUAL MALE RETAIL GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-2623104
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
555 Turnpike Street
Canton, Massachusetts 02021
(Address of Principal Executive Offices)
_______________
CASUAL MALE RETAIL GROUP, INC. 1992 STOCK INCENTIVE PLAN
(Full Title of the Plan)
_______________
Dennis R. Hernreich
Casual Male Retail Group, Inc.
555 Turnpike Street
Canton, Massachusetts 02021
(Name and Address of Agent for Service)
(781) 828-9300
(Telephone Number, Including Area Code,of Agent for Service)
Copy to:
Peter G. Smith, Esq.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
(212) 715-9100
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered(1) Per Share (2) Offering Fee
________________ _____________ ________________ ________________ ___________
Common Stock, par
value $0.01 per
share 5,580,000 $6.54 $36,493,200 $4,623.69
(1) This registration statement (this "Registration Statement") covers
5,580,000 shares of the Registrant's common stock which may be offered or
sold from time to time pursuant to the Registrant's 1992 Stock Incentive
Plan (as amended, the "Plan"). The maximum number of shares of common
stock reserved and available for issuance under the Plan is 6,930,000, of
which 1,350,000 shares (after giving effect to the Registrant's June 8,
1993 three-for-two stock split) were previously registered by the
Registrant pursuant to a Registration Statement on Form S-8, filed with
the Securities and Exchange Commission on October 2, 1992.
(2) Estimated, solely for the purpose of calculating the registration fee,
pursuant to Rules 457(c) and 457(h)(1) promulgated under the Securities
Act of 1933, as amended (the "Securities Act"), based on the average of
the high and low sales prices for the Registrant's common stock reported
on the Nasdaq National Market on February 4, 2004, which is within five (5)
business days prior to the date of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference in this Registration Statement
the following documents:
- - The Registrant's Annual Report on Form 10-K for the fiscal year ended
February 1, 2003, filed May 5, 2003;
- - The Registrant's Quarterly Report on Form 10-Q for the three months
ended May 3, 2003, filed June 16, 2003;
- - The Registrant's Quarterly Report on Form 10-Q for the three months
ended August 2, 2003, filed September 16, 2003;
- - The Registrant's Quarterly Report on Form 10-Q for the three months
ended November 1, 2003, filed December 9, 2003;
- - The Registrant's Current Report on Form 8-K, filed August 21, 2003;
- - The Registrant's Current Report on Form 8-K, filed November 10, 2003;
- - The Registrant's Current Report on Form 8-K, filed November 12, 2003;
- - The Registrant's Current Report on Form 8-K, filed November 13, 2003;
- - The Registrant's Current Report on Form 8-K, filed November 13, 2003;
- - The Registrant's Current Report on Form 8-K, filed November 20, 2003;
- - The description of the Registrant's Class A Common Stock contained in
the latest registration statement of the Registrant with respect to
such Class A Common Stock filed under Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment or report filed for the purpose of updating such description;
- - All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to above; and
- - All documents subsequently filed by the Registrant with the Securities
and Exchange Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act, prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of
such documents.
The Registrant will furnish to each person, including any beneficial owner,
to whom this prospectus is delivered, without charge, a copy of any or all
of the information that has been incorporated by reference (including any
exhibits that are specifically incorporated by reference in that information)
upon oral or written request to:
Casual Male Retail Group, Inc.
555 Turnpike Street
Canton, Massachusetts 02021
(781) 828-9300
Attn: Chief Financial Officer
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Officers and Directors.
The Registrant's Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), provides that no director of the Registrant
shall be personally liable to the Registrant or to any of its stockholders for
monetary damages arising out of such director's breach of fiduciary duty,
except to the extent that the elimination or limitation of liability is not
permitted by the Delaware General Corporation Law. The Delaware General
Corporation Law, as currently in effect, permits charter provisions
eliminating the liability of directors for breach of fiduciary duty, except
that directors remain liable for (i) any breach of the directors' duty of
loyalty to a company or its stockholders, (ii) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) any payment of a dividend or approval of a stock repurchase that is
illegal under Section 174 of the Delaware General Corporation Law, or (iv)
any transaction from which the directors derived an improper personal
benefit. The effect of this provision of the Certificate of Incorporation
is that directors cannot be held liable for monetary damages arising from
breaches of their duty of care, unless the breach involves one of the four
exceptions described in the preceding sentence. The provision does not
prevent stockholders from obtaining injunctive or other equitable relief
against directors, nor does it shield directors from liability under federal
or state securities laws.
The Certificate of Incorporation and the Registrant's By-Laws further
provide for indemnification of the Registrant's directors and officers to
the fullest extent permitted by Section 145 of the Delaware General
Corporation Law, including circumstances in which indemnification is
otherwise discretionary.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
------------- --------------------------------------------------
5.1 Opinion of counsel as to legality of the shares of
the Registrant's Common Stock covered by this
Registration Statement.
10.1 Casual Male Retail Group, Inc. 1992 Stock Incentive
Plan, as amended (incorporated by reference to
Exhibit 10.1 to the Company's Quarterly Report on
Form 10-Q for the three months ended November 1, 2003,
filed December 9, 2003).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of counsel (included in Exhibit 5.1 above).
24.1 Power of Attorney (contained in Signature Page hereto).
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 an 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 clauses (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by
those clauses 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.
(2) That, for the purpose of determining an liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed 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.
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.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been informed 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.
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 Canton, Commonwealth of Massachusetts, on this
6th day of February, 2004.
CASUAL MALE RETAIL GROUP, INC.
By:/S/ DENNIS R. HERNREICH
--------------------------
Name: Dennis R. Hernreich
Title: Executive Vice President,
Chief Financial Officer of Casual
Male Retail Group, Inc.
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Casual Male Retail Group,
Inc., hereby severally constitute and appoint David A. Levin, Dennis R.
Hernreich and Arlene Feldman, and each of them singly, our true and lawful
attorneys, with full power to them and each of them singly, to sign for us
in our names in the capacities indicated below, all pre-effective and post-
effective amendments to this registration statement and any other
registration statement (and any amendment thereto) filed with the Securities
and Exchange Commission with respect to the plan listed on the face of this
registration statement and generally do all things in our names and on our
behalf in such capacities to enable Casual Male Retail Group, Inc. to comply
with the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on
February 6, 2004 in the capacities indicated.
Signature Title(s)
/s/ SEYMOUR HOLTZMAN Chairman of the Board and Director
- --------------------
Seymour Holtzman
/s/ DAVID A. LEVIN President, Chief Executive Officer and Director
- ------------------
David A. Levin
/s/ DENNIS R. HERNREICH Executive Vice President, Chief Financial
- ----------------------- Officer, Treasurer and Principal Accounting
Dennis R. Hernreich Officer
/s/ ALAN S. BERNIKOW Director
- --------------------
Alan S. Bernikow
/s/ JESSE CHOPER Director
- ----------------
Jesse Choper
/s/ STEPHEN M. DUFF Director
- -------------------
Stephen M. Duff
/s/ FRANK J. HUSIC Director
- ------------------
Frank J. Husic
/s/ JOSEPH PENNACCHIO Director
- ---------------------
Joseph Pennacchio
/s/ GEORGE T. PORTER, JR. Director
- -------------------------
George T. Porter, Jr.
EXHIBIT INDEX
Exhibit Number Description
5.1 Opinion of counsel as to legality of the shares of the
Registrant's Common Stock covered by this Registration
Statement.
10.1 Casual Male Retail Group, Inc. 1992 Stock Incentive Plan, as
amended (incorporated by reference to Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q for the quarter ended
November 1, 2003, filed December 9, 2003).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of counsel (included in Exhibit 5.1 above).
24.1 Power of Attorney (contained in Signature Page hereto).
EXHIBIT 5.1
[LOGO OF CASUAL MALE RETAIL GROUP APPEARS HERE]
February 6, 2004
Casual Male Retail Group, Inc.
555 Turnpike Road
Canton, Massachusetts 02021
Ladies and Gentlemen:
I am Vice President and General Counsel of Casual Male Retail Group,
Inc., a Delaware corporation (the "Company"), and have acted as counsel
to the Company in connection with its Registration Statement on
Form S-8 (the "Registration Statement") filed pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), relating to
the registration of an additional 5,580,000 shares (the "Shares") of
the Company's common stock, par value $0.01 per share (the "Common
Stock"), that may be offered or sold from time to time pursuant to the
Company's 1992 Stock Incentive Plan (as amended and as the same may be
further amended or supplemented from time to time, the "Plan").
For purposes of the opinion expressed in this letter, I have examined
copies of the Registration Statement, the Plan, the Restated
Certificate of Incorporation and By-Laws of the Company, records of the
corporate proceedings of the Company and such other documents and
records of the Company as I have deemed necessary or appropriate as a
basis for such opinion. In making my examination, I have assumed the
genuineness of all signatures, the legal capacity of natural persons,
the authenticity of all documents submitted to me as originals and the
conformity to the originals of all documents submitted to me as
photostatic or conformed copies.
I am a member of the Bar of the State of Massachusetts and, for
purposes of the opinion expressed in this letter, do not hold my self
out as expert on, nor am I in rendering the opinion expressed herein
passing on, the laws of any jurisdiction other than the General
Corporation Law of the State of Delaware.
Based on the foregoing, and having regard to such legal considerations
as I have deemed relevant, I am of the opinion that, upon the issuance
and purchase of the Shares in accordance with the terms and provisions
of the Plan, the Shares will be validly issued, fully paid and non-
assessable.
I own options to purchase 5,000 shares of the Company's Common Stock.
I hereby consent to the inclusion of this letter as an exhibit to the
Registration Statement. In giving such consent I do not thereby
concede that I am within the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and
regulations promulgated thereunder.
Very truly yours,
/s/ Arlene Feldman
--------------------------
Arlene Feldman
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Casual Male Retail Group, Inc.
1992 Stock Incentive Plan, of our report dated March 26, 2003, with
respect to the consolidated financial statements and schedule of Casual
Male Retail Group, Inc. included in its Annual Report (Form 10-K) for
the year ended February 1, 2003, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
February 3, 2004