As filed with the Securities and Exchange Commission on August 10, 2005
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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SYMS CORP
(Exact name of issuer as specified in its charter)
New Jersey 22-2465228
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Syms Way, Secaucus, New Jersey 07094
(Address of Principal Executive Offices) (Zip Code)
Syms Corp 2005 Stock Option Plan
(Full title of the plan)
Marcy Syms
Chief Executive Officer and President
Syms Corp
Syms Way
Secaucus, New Jersey 07094
(201) 902-9600
(Name, address and telephone number of agent for service)
Copies to:
Michael N. Rosen, Esq.
Bryan Cave LLP
1290 Avenue of the Americas
New York, New York 10104
(212) 541-2000
CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Maximum Proposed Maximum
Class of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share(1) Price(1) Registration Fee
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Common Stock, par 850,000 (2) $14.775 $12,558,750 $1,480
value $0.05 per share
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(1) Estimated solely for purposes of calculating the registration fee. Pursuant
to Rules 457(c) and (h), the Proposed Maximum Offering Price Per Share and
the Proposed Maximum Aggregate Offering Price are computed on the basis of
the average of the high and low prices for such security on August 8, 2005,
as reported on the New York Stock Exchange.
(2) The shares covered by this Registration Statement represent the common
stock issuable to participants under the Registrant's 2005 Stock Option
Plan, as amended. Pursuant to Rule 416(a) of the Securities Act of 1933, as
amended, this Registration Statement shall also cover any additional shares
of the Registrant's common stock that become issuable hereby by reason of
any stock dividend, stock split, recapitalization or other similar
transaction.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
All information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"), and the
Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
All information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Syms Corp, a New Jersey corporation (the
"Company"), with the Securities and Exchange Commission (the "Commission") are
hereby incorporated by reference and made a part hereof:
1. Annual Report on Form 10-K for the fiscal year ended February 26,
2005, filed with the Commission on May 23, 2005.
2. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since February 26, 2005.
3. The description of the Company's common stock, contained in the
Company's registration statements filed pursuant to Section 12 of the
Exchange Act, and any amendment or report filed for the purpose of
updating any such description.
All documents filed subsequent to the filing date of this Registration
Statement with the Commission by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder have been sold
or which de-registers all such 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 the filing of such documents. For purposes of this
Registration Statement, any statement contained herein or in a document
incorporated or deemed to be incorporated herein by reference 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 subsequent filed document
which also is, or is deemed to be, incorporated by reference herein modifies or
supersedes such document or such statement in such document. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement, except as indicated herein.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article Seven of the Company's Certificate of Incorporation and Article Ten
of the Company's By-Laws each require the Company to indemnify, to the fullest
extent permitted by Section 14A: 3-5 of the Business Corporation Act of New
Jersey, as the same may be amended or supplemented, any and all person whom it
shall have power to indemnify under such Section from and against any and all of
the expenses, liabilities or other matters referred to in or covered by such
Section.
Section 14A: 3-5 of the Business Corporation Act of New Jersey permits a
corporation to indemnify all corporate agents, defined to include (among other
persons) current and former officers and directors of the indemnifying
corporation, against proceedings by or in the right of the corporation, if such
corporate agent acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation. With respect to
proceedings other than those in the right of the corporation, which are criminal
in nature, such right to indemnify is further conditioned on such corporate
agent's having had no reasonable belief that his conduct was unlawful.
Each of the directors has entered into an agreement with the Company that
provides that the Company will indemnify such director to the fullest extent
permitted by the Business Corporation Act of New Jersey. The Company maintains
directors and officers liability insurance which insures against liabilities
that directors and officers of the Company may incur in such capacities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Specimen Certificate of Common Stock*
5.1 Opinion of Wolff & Samson PC, New Jersey counsel to the Company, as to the
legality of the Common Stock being registered.
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Wolff & Samson PC (included as part of Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
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*Incorporated by reference to the Company's Registration Statement on Form S-1
(Registration No. 2-85554) filed with the Securities and Exchange Commission on
August 2, 1983 and declared effective September 23, 1983.
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Item 9. Undertakings.
1. The undersigned registrant hereby undertakes:
(a) 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;
(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 hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
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% 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 this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(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 Exchange Act that are incorporated by
reference in this Registration Statement.
(b) 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.
(c) 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.
2. The undersigned registrant hereby further undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
3. Insofar as indemnification for liabilities arising under the Securities
Act 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 Commission such indemnification is
against public policy as expressed in the Securities 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
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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 Securities Act 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, as amended, 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 Secaucus, State of New Jersey, on the 10th day of
August 2005.
SYMS CORP
By: /s/ Marcy Syms
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Marcy Syms
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Sy Syms and Marcy Syms, and each or any
of them, as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including, without
limitation, post-effective amendments and documents in connection therewith) to
this Registration Statement, and to file the same with the Securities and
Exchange Commission, granting unto each said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he 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, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ Sy Syms Chairman of the Board August 10, 2005
----------------------- and Director (Principal
Sy Syms Executive Officer)
/s/ Marcy Syms Chief Executive Officer, August 10, 2005
----------------------- President and Director
Marcy Syms (Principal Executive Officer)
/s/ Antone F. Moreira Vice President, Chief August 10, 2005
----------------------- Financial Officers, Assistant
Antone F. Moreira Secretary and Director (Principal
Financial Officer and Accounting
Officer)
/s/ Harvey A. Weinberg Director August 10, 2005
-----------------------
Harvey A. Weinberg
/s/ Amber M. Brookman Director August 10, 2005
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Amber M. Brookman
/s/ Wilbur L. Ross, Jr. Director August 10, 2005
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Wilbur L. Ross, Jr.
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EXHIBIT INDEX
No. Document
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4.1 Specimen Certificate of Common Stock*
5.1 Opinion of Wolff & Samson PC, New Jersey counsel to the Company, as to
the legality of the Common Stock being registered.
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Wolff & Samson PC (included as part of Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
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*Incorporated by reference to the Company's Registration Statement on Form S-1
(Registration No. 2-85554) filed with the Securities and Exchange Commission on
August 2, 1983 and declared effective September 23, 1983.
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