As filed with the Securities and Exchange Commission on October 20, 2003
Registration No. 2-97033
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
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, NJ 07094
(Address of Principal Executive Offices) (Zip Code)
Amended and Restated Incentive Stock Option and Appreciation Plan
(Full title of the plan)
Marcy Syms
Chief Executive Officer
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
The purpose of this Post-Effective Amendment No. 2 to Registration Statement No.
2-97033 (the "Post-Effective Amendment") filed by Syms Corp, a New Jersey
corporation (the "Registrant"), with the Securities and Exchange Commission (the
"Commission") is to reflect an amendment to the Registrant's Amended and
Restated Incentive Stock Option and Appreciation Plan, as amended (the "Plan"),
which amendment extends the term of the Plan to July 28, 2013 and provides that
options and/or stock appreciation rights under the Plan may be granted on or
before July 28, 2013.
Explanatory Note
On April 12, 1985, the Registrant filed a Registration Statement on Form S-8
(Registration No. 2-97033) registering 1,000,000 shares of common stock, par
value $0.05 per share (the "Common Stock"), for issuance in accordance with the
terms of the Plan (formerly known as the 1983 Incentive Stock Option Plan). This
Registration Statement was amended by the Post-Effective Amendment No. 1 to Form
S-8 filed on July 14, 1988 (which mistakenly referenced Registration No. 2-85554
instead of Registration No. 2-97033). This Registration Statement, as amended,
is incorporated by reference herein.
On August 22, 2000, the Registrant filed a Registration Statement on Form S-8
(Registration No. 333-44254) registering an additional 500,000 shares of Common
Stock for issuance in accordance with the terms of the Plan. This Registration
Statement is incorporated by reference herein.
The Registrant's Board of Directors approved, subject to shareholder approval at
the Annual Meeting of Shareholders to be held on July 17, 2003, an amendment to
the Plan, which amendment extends the term of the Plan to July 28, 2013 and
provides that options and/or stock appreciation rights under the Plan may be
granted on or before July 28, 2013. On July 17, 2003, the shareholders approved
the adoption of the amendment to the Plan.
Item 8. Exhibits.
4.1 Amendment to Syms Corp Amended and Restated Incentive Stock Option and
Appreciation Plan.
23.1 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (included on signature page of this Post Effective
Amendment).
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 in the
aggregate, represent a fundamental change in the information set forth
in the 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 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 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) 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 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
2
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 Post
Effective Amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Secaucus, State of New Jersey, on the 20th day
of October, 2003.
SYMS CORP
By: /s/ Marcy Sims
---------------------
Marcy Syms, Chief Executive
Officer / President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Marcy Syms and Sy 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
the Registration Statement on Form S-8 (Registration No. No. 2-97033), 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 Post-Effective Amendment 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 and Director October 20, 2003
----------------------
Sy Syms
/s/ Marcy Syms Chief Executive Officer / President October 20, 2003
---------------------- and Director (Principal executive
Marcy Syms officer)
/s/ Antone F. Moreira Vice President, Chief Financial October 20, 2003
---------------------- Officer, Treasurer, Assistant
Antone F. Moreira Secretary and Director (Principal
financial and accounting officer)
/s/ Harvey A. Weinberg Director October 20, 2003
----------------------
Harvey A. Weinberg
/s/ David A. Messer Director October 20, 2003
----------------------
David A. Messer
/s/ Wilbur L. Ross, Jr. Director October 20, 2003
----------------------
Wilbur L. Ross, Jr.
EXHIBIT INDEX
No. Document
--- ---------
4.1 Amendment to Syms Corp Amended and Restated Incentive Stock Option and
Appreciation Plan.
23.1 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (included on the signature page of this Post-Effective
Amendment).