SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [_]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[_] Preliminary Proxy Statement [_] Soliciting Material Under Rule
[_] Confidential, For Use of the 14a-12
Commission Only (as permitted
by Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[_] Definitive Additional Materials
Syms Corp.
--------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
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1) Title of each class of securities to which transaction applies:
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previously. Identify the previous filing by registration statement number,
or the form or schedule and the date of its filing.
1) Amount previously paid:
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SYMS CORP
SYMS WAY
SECAUCUS, NEW JERSEY 07094
June 13, 2003
Dear Shareholder:
You are cordially invited to attend the 2003 Annual Meeting of Shareholders
of Syms Corp (the "Company") which will be held on July 17, 2003, at 10:30 a.m.
at the offices of the Company.
Information about the meeting and the various matters on which the
shareholders will act is included in the Notice of Annual Meeting of
Shareholders and Proxy Statement which follow. Also included is a proxy card and
postage paid return envelope.
It is important that your shares be represented at the meeting. Whether or
not you plan to attend, we hope that you will complete and return your Proxy
Card in the enclosed envelope as promptly as possible.
Sincerely,
Marcy Syms
Chief Executive Officer
SYMS CORP
-----------------
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD ON
JULY 17, 2003
To the Shareholders:
Notice is hereby given that the Annual Meeting of Shareholders of Syms Corp
will be held at the office of the Company at Syms Way, Secaucus, New Jersey
07094, on Thursday, July 17, 2003 at 10:30 a.m. for the following purposes:
1. To elect six (6) Directors to serve for the term of one (1) year or
until their respective successors have been elected and qualified.
2. To ratify the appointment of BDO Seidman, LLP as independent
accountants of the Company for the fiscal year ending February 28, 2004.
3. To approve an amendment to the Syms Corp Amended and Restated
Incentive Stock Option and Appreciation Plan extending the term of the Plan
from July 28, 2003 to July 28, 2013.
4. To transact such other business as may properly come before the
meeting and any adjournment(s) or postponement(s) thereof.
The foregoing items of business are described more fully in the Proxy
Statement accompanying this notice.
The close of business on June 13, 2003 has been fixed by the Board of
Directors as the record date for the determination of shareholders entitled to
notice of, and to vote at, the meeting and only shareholders of record at such
time will be so entitled to vote.
You are cordially invited to attend the meeting in person if possible.
Please sign and date the enclosed proxy and return it in the envelope enclosed
for this purpose, whether or not you plan to attend the meeting. It will assist
us in keeping down the expenses of the meeting if shareholders return their
signed proxies promptly, whether they own a few shares or many shares.
By Order of the Board of Directors
Antone F. Moreira
Assistant Secretary
Secaucus, New Jersey
June 13, 2003
SYMS CORP
SYMS WAY
SECAUCUS, NEW JERSEY 07094
PROXY STATEMENT
FOR ANNUAL MEETING OF
SHAREHOLDERS TO BE HELD
ON JULY 17, 2003
INTRODUCTION
This Proxy Statement and enclosed proxy card are being furnished in
connection with the solicitation by the Board of Directors of Syms Corp, a New
Jersey corporation, (the "Company"), of proxies for use at the July 17, 2003
Annual Meeting of the Shareholders of the Company or at any adjournment(s) or
postponement(s) thereof (the "Annual Meeting") for the purposes set forth in the
accompanying Notice of Annual Meeting of Shareholders. The Annual Meeting will
be held at the Company's executive offices located at Syms Way, Secaucus, New
Jersey 07094. The cost of preparing and mailing the proxy and this Proxy
Statement and all other costs in connection with this solicitation of proxies
will be borne by the Company. It is anticipated that the accompanying proxy and
this Proxy Statement will be sent to shareholders of the Company on or about
June 13, 2003.
Proxies in the accompanying form which are properly executed and duly
returned to the Company and not revoked will be voted as specified. Any proxy in
which no direction is specified will be voted FOR the election of the nominees
for director, FOR the ratification of the appointment of BDO Seidman, LLP as
independent accountants, and FOR the approval of an amendment to the Company's
Amended and Restated Incentive Stock Option and Appreciation Plan (collectively
the "Proposals"), and in the discretion of the proxies named on the proxy card
with respect to any other matters properly brought before the meeting and any
adjournment(s) or postponement(s) thereof. Each proxy granted is revocable and
may be revoked at any time prior to its exercise, by notifying American Stock
Transfer & Trust Co., 59 Maiden Lane, New York, NY 10038 in writing, by
executing a subsequent proxy or by electing to vote in person at the Annual
Meeting. Mere attendance at the Annual Meeting will not serve to revoke a proxy.
The Company intends to reimburse brokerage companies and others for forwarding
proxy materials to beneficial owners of shares.
Only shareholders of record of the Company's voting securities as of the
close of business on June 13, 2003 are entitled to notice of and to vote at the
Annual Meeting. As of the record date, 15,440,478 shares of common stock, par
value $.05 per share ("Common Stock"), were outstanding. Each share of Common
Stock entitles the record holder thereof to one vote on each of the Proposals
and on all other matters properly brought before the Annual Meeting.
Concurrently with the mailing of this Proxy Statement, the Company is mailing
its Annual Report for its fiscal year ended March 1, 2003 to shareholders of
record on June 13, 2003.
Shareholders vote at the Annual Meeting by casting ballots (in person or by
proxy) which are tabulated by a representative of the Company's independent
transfer agent appointed to serve as Inspector of Election at the meeting and
who has executed and verified an oath of office. The holders of a majority of
the shares of Common Stock issued and outstanding represented in person or by
proxy shall constitute a quorum. The affirmative vote of a plurality of the
votes cast at the Annual Meeting is sufficient to elect a director. The
affirmative vote of a majority of the votes cast at the Annual Meeting is
required to ratify the appointment of BDO Seidman LLP as the Company's
independent public accountants. The affirmative vote of the holders of a
majority of the outstanding shares of Common Stock is required to approve the
amendment to the Company's Amended and Restated Incentive Stock Option and
Appreciation Plan. Abstentions and broker non-votes are included in the
determination of the number of shares present at the Annual Meeting for quorum
purposes but not counted in the tabulations of the votes cast on proposals
presented to shareholders.
1
ELECTION OF DIRECTORS
PROPOSAL 1
At the Annual Meeting, all six directors of the Company are to be elected
for the term of one year or until their respective successors have been elected
and qualified. It is intended that votes will be cast pursuant to proxies
received from holders of Common Stock of the Company for the nominees listed
below, unless the proxy contains contrary instructions. The affirmative vote of
a plurality of the votes cast at the meeting is necessary for the election of
directors.
If any of the nominees listed below is unavailable for election at the date
of the Annual Meeting, the shares represented by the proxy will be voted for the
remaining nominees and for such substitute nominee or nominees as the Board of
Directors, in their judgment, designate. The Company at this time has no reason
to believe that any of such nominees will decline or be unable to serve if
elected.
Background information with respect to the Board of Directors and nominees
for election as directors, all of whom are incumbent directors, appears below.
Except for Marcy Syms, who is the daughter of Sy Syms, there is no family
relationship between any nominee and any other nominee or executive officer of
the Company. See "Security Ownership of Certain Beneficial Owners and
Management" for information regarding such person's holding of equity securities
of the Company.
NAME OF DIRECTOR OR NOMINEE FOR ELECTION AGE DIRECTOR SINCE PRINCIPAL OCCUPATION
---------------------------------------- --- -------------- --------------------
Sy Syms (1) (2) ......................... 77 1983 Chairman of the Board and Director of
the Company
Marcy Syms (1) (2)....................... 52 1983 Chief Executive Officer/President and
Director of the Company
Antone F. Moreira........................ 66 1997 Vice President, Treasurer and Chief
Financial Officer and Director of the
Company
Harvey A. Weinberg (3) (4)............... 65 1992 Director of the Company
David A. Messer(3)(4) ................... 41 1996 Director of the Company
Wilbur L. Ross, Jr.(3)(4) ............... 65 1983-1999; Director of the Company
2000
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(1) Member of the Executive Committee of the Company.
(2) Sy Syms is the father of Marcy Syms.
(3) Member of the Stock Option - Compensation Committee of the Company.
(4) Member of the Audit Committee of the Company.
2
NOMINEES FOR ELECTION AS DIRECTOR
The following individuals are nominees for director at the Annual Meeting:
SY SYMS has been Chairman of the Board, Chief Executive Officer and a
Director of the Company and/or its predecessors since 1959. Mr. Syms was Chief
Operating Officer of the Company from 1983 to 1984. Mr. Syms has been a Director
of Israel Discount Bank of New York since December 1991. On January 22, 1998, Sy
Syms resigned his position as Chief Executive Officer. Since that date, Mr. Syms
has been Chairman of the Board.
MARCY SYMS has been President and a Director of the Company since 1983 and
Chief Operating Officer of the Company since 1984. On January 22, 1998, Marcy
Syms was named Chief Executive Officer/President. Marcy Syms is Sy Syms'
daughter.
ANTONE F. MOREIRA has been Vice President, Chief Financial Officer,
Treasurer and Assistant Secretary of Syms Corp since May 1997. From 1996 to May
1997, Mr. Moreira was a financial consultant with Equitable Assurance Society, a
financial services organization. From 1990 to 1995, Mr. Moreira was Executive
Vice President and Chief Financial Officer of Stuarts Department Stores, Inc., a
regional discount department store chain operating in New England. Mr. Moreira
has been a Director of the Company since May 1997.
HARVEY A. WEINBERG has been a consultant in various industries since April
1994. From April 1992 to April 1994, he was President and Chief Executive
Officer of HSSI, Inc., a retailer of men's and women's apparel. From 1987 to
September 1990, he was Chief Executive Officer and Vice Chairman of the Board of
Directors of Hartmarx Corporation and from 1990 to September 1992, he served as
Chairman of such Board of Directors. He is a trustee of Glimcher Realty Trust, a
real estate investment trust. He is also a Director of R.G. Barry Corp. He has
been a Director of the Company since 1992.
DAVID A. MESSER has been President of Sempra Energy Trading Corp., a
subsidiary of Sempra Energy, Inc., since January 1998. Prior to January 1998,
Mr. Messer was President of AIG Trading Corp. where he had been employed since
March 1990. He has been a Director of the Company since July 1996.
WILBUR L. ROSS, JR. has been a principal of W L Ross & Company LLC since
2000. Mr. Ross was Managing Director of Rothchild, Inc. from 1976 to 1999. He
was a Director of the Company from 1983 through March 1999 and was reappointed
Director in October 2000.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE SHAREHOLDERS VOTE FOR THE
ELECTION OF EACH NOMINEE FOR DIRECTOR NAMED ABOVE. PROXIES SOLICITED HEREBY WILL
BE VOTED FOR EACH NOMINEE NAMED ABOVE UNLESS A VOTE AGAINST A NOMINEE OR AN
ABSTENTION IS SPECIFICALLY INDICATED.
3
MEETINGS AND COMMITTEES OF THE BOARD OF DIRECTORS
During the Company's fiscal year ended March 1, 2003 there were four
meetings of the Board of Directors. Each director attended all of the fiscal
2002 meetings of the Board of Directors and the committees of which he or she
was a member during the 2002 fiscal year. The Committees of the Board of
Directors include an Audit Committee, an Executive Committee and a Stock Option
- Compensation Committee. The Board of Directors does not have a nominating
committee.
The Audit Committee has the principal function of reviewing the adequacy of
the Company's internal system of accounting controls, conferring with the
independent certified pubic accountants concerning the scope of their
examination of the books and records of the Company and their audit and
non-audit fees, recommending to the Board of Directors the appointment of
independent certified public accountants, reviewing related party transactions
and considering other appropriate matters regarding the financial affairs of the
Company. The Audit Committee operates under a written charter adopted by the
Board of Directors and intended to comply with the applicable requirements of
the Securities and Exchange Commission and the New York Stock Exchange. The
current members of the Audit Committee are Harvey A. Weinberg (Chairman), David
A. Messer and Wilbur L. Ross, Jr., none of whom is, or has ever been, an officer
or employee of the Company and are all considered "Independent" for the purposes
of the New York Stock Exchange listing standards. The Audit Committee met four
times during the fiscal year ended March 1, 2003.
The Executive Committee exercises all of the powers and authority of the
Board of Directors in the management and affairs of the Company between meetings
of the Board of Directors, to the extent permitted by law. The members of the
Executive Committee are Sy Syms and Marcy Syms. The Executive Committee did not
meet during the fiscal year ended March 1, 2003.
The Stock Option - Compensation Committee reviews and recommends to the
Board of Directors renumeration arrangements and compensation plans for the
Company's officers and key employees and administers the Company's Amended and
Restated Incentive Stock Option and Appreciation Plan, as amended (the "Option
Plan"), and determines the officers and key employees who are to be granted
options under the Option Plan and the number of shares subject to such options.
The members of the Stock Option - Compensation Committee are David A. Messer,
Wilbur L. Ross, Jr. and Harvey A. Weinberg, none of whom is, or has ever been,
an officer or employee of the Company. The Stock Option - Compensation Committee
met once during the fiscal year ended March 1, 2003.
COMPENSATION OF DIRECTORS
Each member of the Board of Directors who is not an officer or employee
of the Company receives a Director's fee presently established at the rate of
$2,500 per meeting for attending regular or special meetings of the Board of
Directors. Additionally, each committee member of the Board of Directors
receives $500 for any committee meeting attended by such member, together with
travel expenses related to such attendance. Directors who are officers or
employees of the Company do not receive any additional compensation by reason of
their service as directors.
4
EXECUTIVE OFFICERS
The Company's executive officers, as well as additional information with
respect to such persons, are set forth in the table below:
Name Age Position
---- --- --------
Sy Syms 77 Chairman of the Board and Director
Marcy Syms 52 Chief Executive Officer/President and Director
Antone F. Moreira 66 Vice President, Chief Financial Officer,
Treasurer, Assistant Secretary and Director
Ronald Zindman 53 Executive Vice President, General Merchandise
Manager
Allen Brailsford 59 Executive Vice President, Operations
Myra Butensky 44 Vice President, Divisional Merchandise Manager
Men's Tailored Clothing
James Donato 47 Vice President, Operations
Elyse Marks 50 Vice President, Information Services
John Tyzbir 49 Vice President, Human Resources
Information with respect to executive officers of the Company who also are
Directors is set forth on Page 3 of this Proxy Statement.
RONALD ZINDMAN has been Executive Vice President - General Merchandise
Manager of the Company since March 1997. He was Vice President, General
Merchandise Manager, Ladies, Men's and Haberdashery of the Company from July
1994 to March 1997. Previously, Mr. Zindman was Vice President - General
Merchandise Manager Ladies of the Company from March 1993 to July 1994 and a
buyer of men's and women's merchandise from March 1990 to March 1993.
ALLEN BRAILSFORD has been Executive Vice President of the Company since
April 2001. Mr. Brailsford was Vice President of Operations of the Company from
March 1992 to March 2001, and from March 1985 to March 1992, he was Director of
Distribution of the Company.
MYRA BUTENSKY has been Vice President - Divisional Merchandise Manager,
Men's Tailored Clothing of the Company since January 1999. From May 1998 to
January 1999, Ms. Butensky was Divisional Merchandise Manager, Ladies, of the
Company. From June 1991 to April 1998, Ms. Butensky was a ladies buyer. Prior to
joining the Company in 1991, Ms. Butensky was a buyer with Popular Trading Club,
Inc, and also spent 10 years with Macy's in a number of buying positions.
JAMES DONATO has been Vice President of Operations of the Company since
April 2001. From November 1997 to March 2001 he was Director of Store Planning
of the Company. Prior to November 1997, Mr. Donato was in store management as a
District Manager and Store Manager of the Company.
ELYSE MARKS has been Vice President of MIS of the Company since April 2001.
From November 1999 to March 2001, Ms. Marks was Director of MIS of the Company.
Prior to November 1999, Ms. Marks was manager of MIS and store systems of the
Company. From 1983 to 1987, she was also in store management for the Company.
JOHN TYZBIR has been Vice President - Human Resources of the Company since
April 1999. From October 1997 to April 1999, Mr. Tyzbir was Director of Human
Resources of the Company. From January 1995 to October 1997, Mr. Tyzbir was
Director of Human Resources of Zallie Supermarkets Corp. From June 1991 to
January 1995, Mr. Tyzbir was Director of Human Resources and Planning of Carson
Pirie Scott Inc.
The Company's officers are elected annually by the Board of Directors and
hold office at the discretion of the Board of Directors.
5
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth the beneficial ownership of shares of Common
Stock as of June 13, 2003, by each person known by the Company to own
beneficially more than five percent (5%) of the Company's outstanding Common
Stock, by each Director and nominee for Director, each of the executive officers
named in the Summary Compensation Table, and by all Directors and executive
officers of the Company as a group. Each person named in the table has sole
voting and investment power with respect to all shares of Common Stock shown as
beneficially owned by such person, except as otherwise set forth in the notes to
the table.
AMOUNT AND NATURE OF
BENEFICIAL OWNERSHIP PERCENT OF
NAME AND ADDRESS OF BENEFICIAL OWNER OF COMMON STOCK AS OF JUNE 14, 2001 CLASS
------------------------------------- ----------------------------------- ----------
Sy Syms............................... 39.2%
Syms Way, Secaucus, NJ 07094 6,046,383 (1)
Marcy Syms............................ 2,557,363 (2)(3) 16.0%
Syms Way, Secaucus, NJ 07094
Tweedy Browne Company, L.P............ 1,520,640 9.9%
52 Vanderbilt Avenue
New York, NY 10017
Franklin Advisory Services, Inc....... 1,430,000 9.3%
777 Mariner's Island Blvd.
San Madeo, CA 94403
Dimensional Fund Advisors, Inc........ 1,118,900 7.2%
1299 Ocean Avenue
Santa Monica, CA 90401
Ronald Zindman....................... 162,100 (4) 1.0%
Syms Way, Secaucus, NJ 07094
Harvey A. Weinberg.................... *
2384 Augusta Way 200
Highland Park, IL 60035
Allen Brailsford...................... *
Syms Way, Secaucus, NJ 07094 4,200
David A. Messer....................... 2,000 *
Sempra Energy
58 Commerce Road
Stamford, CT 06902
Antone F. Moreira..................... 4,000 *
Syms Way, Secaucus, NJ 07094
Wilbur L. Ross, Jr.................... 3,000 *
WL Ross & Company LLC
101 East 52nd Street
New York, NY 10022
All directors and executive officers 8,796,646 57.0%
as a group (12 persons)...............
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* Less than one percent.
6
(1) Includes (a) 6,046,283 shares held in the Sy Syms Revocable Living Trust,
dated March 17, 1989, as amended (the "Sy Syms Revocable Living Trust"); Sy
Syms retains the sole voting power of such shares and the right to revoke
the Sy Syms Revocable Living Trust at any time, and (b) 100 shares held by
Sy Syms as custodian for Jillian E. Merns.
(2) Includes 525,000 shares issuable upon the exercise of options granted under
the Option Plan and either currently exercisable or exercisable within 60
days of June 13, 2003.
(3) Includes (a) 687,788 shares held in the Laura Merns Living Trust, dated
February 14, 2003, between Laura Merns, as settlor, and Marcy Syms, as
trustee and (b) 317,183 shares held in the [Marcy Syms Revocable Living
Trust, dated January 12, 1990, as amended; Marcy Syms retains the sole
voting power of such shares and the right to revoke the Marcy Syms
Revocable Living Trust at any time.
(4) Includes 159,900 shares issuable upon the exercise of options granted under
the Option Plan and either currently exercisable or exercisable within 60
days of June 13, 2003.
EXECUTIVE COMPENSATION
The following table sets forth the compensation paid by the Company and its
subsidiaries for the last three fiscal years to its five most highly compensated
executive officers, including the Chief Executive Officer, serving as such at
the end of the most recently completed fiscal year.
SUMMARY COMPENSATION TABLE
LONG-TERM
COMPENSATION
AWARDS (2)
NAME AND PRINCIPAL POSITION ANNUAL COMPENSATION SECURITIES ALL OTHER
--------------------------- --------------------------------------- UNDERLYING COMPENSA-
YEAR(1) SALARY BONUS OPTIONS/SARs TION (3)
------- --------------- ------- ------------ ---------
Sy Syms............................ 2002 $721,138 (4)(5) $ 0 0 $ 0
Chairman of the Board 2001 $824,980 (4)(5) $ 0 0 $ 0
2000 $840,845 (4)(5) $ 0 0 $ 0
Marcy Syms ........................ 2002 $589,544 (4) $ 0 0 $ 0
Chief Executive Officer/President 2001 $573,332 (4) $ 0 0 $ 0
2000 $557,507 (4) $ 0 0 $ 0
Ronald Zindman..................... 2002 $350,000 $ 0 0 $ 0
Executive Vice President- 2001 $350,000 $ 0 0 $ 0
General Merchandise Manager 2000 $356,743 $10,000 0 $ 0
Antone F. Moreira.................. 2002 $150,800 $ 0 0 $ 0
Vice President, Chief Financial 2001 $150,800 $ 0 0 $ 0
Officer, Treasurer and Assistant
Secretary 2000 $146,500 $ 5,000 0 $ 0
Allen Brailsford................... 2002 $132,600 $ 0 0 $ 0
Executive Vice President 2001 $132,600 $ 0 0 $ 0
Operations 2000 $130,950 $10,000 0 $ 0
(1) The compensation reported for fiscal years ended March 1, 2003 and March 2,
2002 reflects annual salaries for a 52-week period. The compensation
reported for fiscal year ended March 3, 2001 reflects salaries for a
53-week period.
7
(2) During the period covered by the table, the Company did not make any
restricted stock awards or have in effect (or make payments under) any long
term incentive plan other than the Option Plan, pursuant to which only
stock options, but no stock appreciation rights, were awarded.
(3) Company's contributions to a defined contribution profit sharing retirement
plan.
(4) Sy Syms is paid at a weekly rate of $12,019 and Marcy Syms is paid at a
weekly rate of $11,866.
(5) Excludes payments made under the lease of the Elmsford store. See "Certain
Relationships and Related Transactions."
STOCK OPTION GRANTS IN FISCAL 2002
No stock options or stock appreciation rights were granted to the executive
officers named in the Summary Compensation Table during the fiscal year ended
March 1, 2003.
AGGREGATED OPTION/SAR EXERCISES
IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION/SAR VALUES
The following table provides information concerning exercises of stock options
as of March 1, 2003 by the executive officers named in the Summary Compensation
Table and the value of unexercised options held by them at March 1, 2003.
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED IN-THE-MONEY
NUMBER OF OPTIONS/SARs AT OPTIONS/SARs AT
SHARES VALUE MARCH 1, 2003 (1) MARCH 1, 2003 ($) (2)
ACQUIRED ON REALIZED -------------------------- --------------------------
NAME EXERCISE ($) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ----------- -------- ----------- ------------- ----------- -------------
Sy Syms 0 0 0 0 0 0
Marcy Syms 0 0 525,000 62,500 451,250 112,813
Ronald Zindman 0 0 159,900 18,100 288,620 32,671
Antone F. Moreira 0 0 4,000 1,000 7,220 1,805
Allen Brailsford 0 0 4,000 1,000 7,220 1,805
----------
(1) No SARs are held.
(2) Based upon a closing price of $7.43 per share of Common Stock on the New
York Stock Exchange on February 28, 2003.
PENSION PLAN
The following table sets forth the estimated annual benefits payable on
retirement to persons in specified renumeration and years of participation
classifications under the Company's defined benefit pension plan (the "Pension
Plan") for employees not covered under collective bargaining agreements:
HIGHEST FIVE 15 20 25 30 35
YEAR AVERAGE YEARS OF YEARS OF YEARS OF YEARS OF YEARS OF
COMPENSATION SERVICE SERVICE SERVICE SERVICE SERVICE
------------ -------- -------- -------- -------- --------
$ 50,000 ......... $ 5,700 $ 7,600 $ 9,500 $ 9,500 $ 9,500
75,000 ......... 8,550 11,400 14,250 14,250 14,250
100,000 ......... 11,400 15,200 19,000 19,000 19,000
125,000 ......... 14,250 19,000 23,750 23,750 23,750
150,000 ......... 17,100 22,800 28,500 28,500 28,500
8
Each participant in the Pension Plan is entitled to an annual retirement
benefit equal to 19% of the average compensation (excluding bonuses) during his
five consecutive highest paid calendar years during the ten years prior to
retirement except that the annual benefit payable to Sy Syms at normal
retirement, as per the Pension Plan, cannot exceed $70,000. A participant's
interest vests over a seven year period commencing in the third year at the rate
of 20% after completing three years of employment and 20% for each year
thereafter, and is 100% vested after the completion of seven years of service.
Benefit payments are made in the form of one of five annuity payment options
elected by the participant. Amounts in the table are based on a straight life
annuity. For the executive officers named in the Summary Compensation Table,
compensation for purposes of the Pension Plan generally corresponds to the
amounts shown in the "Salary" column of the Summary Compensation Table.
Currently no more than $160,000 (as adjusted from time to time by the
Internal Revenue Service) of cash compensation may be taken into account in
calculating benefits payable under the Pension Plan. Executive officers in the
Summary Compensation Table were credited with the following years of service at
December 31, 2002: Sy Syms, 29 or more years; Marcy Syms, 25 or more years;
Ronald Zindman, 13 years; Allen Brailsford, 18 or more years; and Antone Moreira
6 or more years. Benefits under the Pension Plan are not subject to any
deduction for social security or other offset amount. The annual retirement
benefit is reduced pro rata if the employee has completed less than fifteen
years of service. Effective December 31, 1994, the plan was amended to change
the pro rata reduction to be based on 25 years of participation. A participant
is entitled to be paid his benefits upon his retirement at age 65. If a
participant has completed at least 15 years of service he may retire upon
reaching age 55 but the benefits he receives will be actuarially reduced to
reflect the longer period during which he will receive a benefit. A participant
who leaves the Company for any reason other than death, disability or retirement
will be entitled to receive the vested portion of his benefit payable over
different periods of time depending on the aggregate amount vested and payment
option elected.
EMPLOYMENT AGREEMENTS
The Company has entered into an employment agreement dated November 1, 1996
with its Executive Vice President - General Merchandise Manager, Ronald Zindman.
Pursuant to the agreement, Mr. Zindman is to receive a minimum salary of
$225,000 per year from inception through March 1, 1997; $300,000 per year for
the next succeeding three years; $350,000 per year for the next succeeding three
years; $400,000 per year for the next succeeding three years; and $450,000 per
year for the final three years of the agreement. The agreement is to remain in
effect until March 1, 2009. Termination of the agreement by the Company before
that date will require a payment to Mr. Zindman equal to 150% of one year's
salary (at the employee's then current rate). If this agreement is terminated by
the employee prior to its final term, the Company must pay to the employee a sum
equal to 60% of one year's salary (also at the employee's then current rate).
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
All of the members of the Stock Option-Compensation Committee are
non-employee directors and none has any direct or indirect material interest in
or relationship with the Company outside of his position as a Director. The
members of this Committee are Harvey A. Weinberg, David A. Messer and Wilbur L.
Ross, Jr.
No executive officer of the Company served during fiscal 2002 (i) as a
member of the compensation committee (or other board committee performing
equivalent functions or, in the absence of any such committee, the entire board
of directors) of another entity, one of whose executive officers serves on the
Stock Option - Compensation Committee of the Company; (ii) as a director of
another entity, one of whose executive officers served on the Stock
Option-Compensation Committee of the Company; or (iii) as a member of the
compensation committee (or other board committee performing equivalent functions
or, in the absence of any such committee, the entire board of directors) of
another entity, one of whose executive officers served as a Director of the
Company.
9
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN ANY OF THE COMPANY'S
PREVIOUS FILINGS UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED, THAT MIGHT INCORPORATE FUTURE FILINGS,
INCLUDING THIS PROXY STATEMENT, IN WHOLE OR IN PART, THE FOLLOWING PERFORMANCE
GRAPH AND "REPORT OF THE COMPENSATION COMMITTEE" SHALL NOT BE INCORPORATED BY
REFERENCE INTO ANY SUCH FILINGS.
PERFORMANCE GRAPH
Below is a graph comparing the cumulative total shareholders return on the
Company's Common Stock for the last six fiscal years (beginning February 27,
1998 and ending March 1, 2003, the last trading day during the Company's last
completed fiscal year) with the cumulative total return of the Wilshire 5000
Index and the S&P Retail Composite Index over the same period (assuming (i) the
investment of $100 on February 27, 1998 in the Company's Common Stock and in
each of these two Indexes, (ii) reinvestment of all dividends and (iii) no
payment of brokerage or other commissions or fees).
[Table below represents a line chart in the printed document.]
2/27/1998 2/26/1999 2/25/2000 3/2/2001 3/1/2002 3/1/2003
--------- --------- --------- -------- -------- --------
Syms Corp $100 $ 58 $ 32 $ 42 $ 42 $ 52
S&P Retail 100 149 158 153 177 127
Wilshire 5000 100 113 132 114 103 80
REPORT OF THE STOCK OPTION - COMPENSATION COMMITTEE
The Stock Option - Compensation Committee's executive compensation policy
strives to provide compensation rewards based upon both corporate and individual
performance while maintaining a relatively simple compensation program in order
to avoid the administrative costs which the Stock Option - Compensation
Committee believes are inherent in multiple complex compensation plans and
agreements. The Company has only one employment agreement with an executive
officer, Ronald Zindman, and has only one executive compensation plan, the
Option Plan.
The determination of compensation ranges for executive officers reflects a
review of salaries and bonuses for executive officers holding similar positions
in retailers of relatively comparable size and orientation. However, in making
compensation decisions, the Stock Option - Compensation Committee remains
cognizant of the Board of Directors' responsibility to enhance shareholder
value. The Stock Option - Compensation Committee utilizes cash bonuses, when it
feels a bonus is merited, based on factors such as an executive's individual
performance and the Company's performance relative to its past performance and
the performance of competitors. The Company has available a long-term incentive
for executives to both remain in the employ of the Company and to strive to
maximize shareholder value through the Option Plan, which aligns the interests
of executives with those of shareholders.
Determination of Marcy Syms' compensation as the Company's Chief Executive
Officer for the fiscal year ended March 1, 2003 reflects the Company's
performance and a comparison with chief executive officer compensation of the
Company's competitors, but also reflects recognition of Ms. Syms unique, ongoing
contribution to the growth, success and profitability of the Company.
10
It is the responsibility of the Stock Option - Compensation Committee to
address the issues raised by the tax laws which make certain
non-performance-based compensation to executives of public companies in excess
of $1,000,000 non-deductible to the Company. In this regard, the Stock Option
-Compensation Committee must determine whether any actions with respect to this
limit should be taken by the Company. At this time, it is not anticipated that
any Executive Officer will receive any such compensation in excess of this
limit. Therefore, the Stock Option - Compensation Committee has not taken any
action to comply with the limit.
STOCK OPTION - COMPENSATION COMMITTEE
Harvey A. Weinberg
David A. Messer
Wilbur L. Ross, Jr.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company leases its store in Elmsford, New York from Sy Syms, Chairman
of the Board and principal shareholder of the Company. The lease for this store
between the Company and Mr. Syms expired November 30, 1999 and the property had
been occupied by the Company on a month-to-month basis through November 30,
2002. On December 1, 2002, Syms Corp and Sy Syms entered into a lease for the
Elmsford store for a fixed annual rent of $796,500 which expires on November 30,
2010. The audit committee of the Board of Directors, which is comprised solely
of the independent directors of the Board of Directors, reviewed and ratified
the execution and delivery of such lease. During the fiscal year ended March 1,
2003, the Company paid to Sy Syms approximately $649,000 in fixed rent.
On April 2, 2001, the Company loaned the Marcy Syms Revocable Trust
$800,000. The loan is evidenced by the Trust's ten-year Note which is guaranteed
by Marcy Syms, Chief Executive Officer and President of the Company and daughter
of Sy Syms, and is secured by a first priority mortgage on the real estate which
Ms. Syms owns in Westchester County, New York. The Note bears interest at the
rate of 5.43% per annum (the then applicable federal long term rate) payable
annually. In fiscal 2002, the Marcy Syms Revocable Trust paid in full a Note to
the Company in the amount of $800,000.
On January 10, 2002, an independent committee of the Board of Directors was
established to review the potential acquisition of Stanley Blacker, Inc., a
corporation owned by the Sy Syms Revocable Living Trust. This committee obtained
an independent appraisal as to the fair market value of the business enterprise
of Stanley Blacker, Inc., and on April 18, 2002, the Board of Directors approved
the acquisition based on the independent committee's recommendation to acquire
the assets of Stanley Blacker, Inc. The assets of Stanley Blacker, Inc.
consisted substantially of trademarks and trade names licensed to third party
manufacturers of clothing and accessories. The acquisition of such assets was
consummated on May 1, 2002, for a purchase price consisting of $250,000 paid in
cash, $250,000 paid by the issuance of 44,138 shares of the Company's Common
Stock and the balance by the taking of the assets subject to a note payable to
Fleet National Bank in the principal amount of $1,675,000 together with interest
thereon of approximately $11,355, which note was paid in full by the Company.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) Beneficial Ownership Reporting Compliance of the Securities
Exchange Act of 1934, as amended, requires the Company's officers and directors,
and persons who own more than 10% of a registered class of the Company's equity
securities, to file initial statements of beneficial ownership (Form 3), and
statements of changes in beneficial ownership (Forms 4 and 5), of Common Stock
of the Company with the Securities and Exchange Commission. Executive officers,
directors and greater than 10% shareholders are required to furnish the Company
with copies of all such forms they file.
11
To the Company's knowledge, based solely on its review of the copies of
such forms received by it, or written representations from certain reporting
persons that no additional forms were required, all filing requirements
applicable to its executive officers, directors, and greater than 10%
shareholders were met.
AUDIT COMMITTEE REPORT
The Audit Committee reviews the Company's financial reporting process on
behalf of the Board of Directors. Management has the primary responsibility for
the financial statements and reporting process. The Company's independent
auditors are responsible for expressing an opinion on the conformity of the
Company's audited financial statements to generally accepted accounting
principles.
In this context, the Audit Committee has reviewed and discussed with
management and the independent auditors the Company's audited financial
statements. The Audit Committee has discussed with the independent auditors the
matters required to be discussed by Statement on Auditing Standards No. 61
(communication with audit committees). In addition, the Audit Committee has
received from the independent auditors the written disclosures required by
Independence Standards Board Standard No. 1 (independence discussions with audit
committees) and discussed with them their independence from the Company and its
management.
In reliance on the reviews and discussions referred to above, the Audit
Committee recommended to the Board of Directors, and the Board has approved that
the Company's audited financial statements be included in the Company's Annual
Report on Form 10-K for the fiscal year ended March 1, 2003, for filing with the
Securities and Exchange Commission.
AUDIT COMMITTEE
David A. Messer
Harvey A. Weinberg
Wilbur L. Ross, Jr.
RATIFICATION OF APPOINTMENT OF INDEPENDENT ACCOUNTANTS
PROPOSAL 2
The Board of Directors of the Company has appointed BDO Seidman, LLP ("BDO
Seidman") as the independent accountants for the Company for the fiscal year
ending February 28, 2004 and recommends that shareholders ratify such
appointment. The affirmative vote of a majority of the votes cast at the meeting
is necessary for ratification of the appointment of BDO Seidman as the
independent accountants for fiscal 2003. If the shareholders do not ratify the
appointment of BDO Seidman as the Company's independent accountants, the Board
of Directors and the Audit Committee will reconsider this selection.
On May 23, 2003, upon the recommendation of the Company's Audit Committee,
the Company's Board of Directors voted to approve the engagement of BDO Seidman
as the Company's independent auditors. BDO Seidman will replace Deloitte &
Touche LLP ("Deloitte & Touche") as the Company's independent auditors.
Effective May 28, 2003, the Company dismissed Deloitte & Touche as the Company's
independent auditors. Deloitte & Touche and its predecessor firms had audited
the financial statements of the Company for more than the past ten fiscal years
and served as the Company's independent accountants for the fiscal year ended
March 1, 2003.
A representative of BDO Seidman is expected to be present at the meeting
and will have an opportunity to make a statement if he or she desires to do so
and will be available to respond to appropriate questions from shareholders.
Representatives of Deloitte & Touche are not expected to attend the meeting.
12
None of Deloitte & Touche's reports on the Company's consolidated financial
statements for the past two years contained an adverse opinion or a disclaimer
of opinion, or was qualified or modified as to uncertainty, audit scope or
accounting principles.
During the Company's two most recent fiscal years and any subsequent
interim period preceding the dismissal of Deloitte & Touche as the independent
accountants, there were no disagreements between the Company and Deloitte &
Touche on any matter of accounting principles or practices, financial statement
disclosure, or auditing scope or procedure, which, if not resolved to Deloitte &
Touche's satisfaction, would have caused Deloitte & Touche to make reference to
the subject matter in connection with its report on the Company's consolidated
financial statements for such period; and there were no reportable events, as
defined in Item 304(a)(1)(v) of Regulation S-K.
The Company provided Deloitte & Touche with a copy of the foregoing
statements and received a letter from Deloitte & Touche stating its agreement
with such statements. The Company filed this letter as an exhibit to its current
report on Form 8-K/A filed with the SEC on June 3, 2003.
During the Company's two most recent fiscal years and any subsequent
interim period prior to engaging BDO Seidman as the independent accountants, the
Company did not consult BDO Seidman with respect to (i) the application of
accounting principles to a specified transaction, either completed or proposed,
or the type of audit opinion that might be rendered on the Company's
consolidated financial statements; or (ii) any matter that was either the
subject of a disagreement (as defined in Item 304(a)(1)(iv) of Regulation S-K
and the related instructions to this item) or a reportable event (as defined in
Item 304(a)(1)(v) of Regulation S-K).
AUDIT FEES: Audit fees billed to the Company by Deloitte & Touche for
auditing the Company's annual financial statements for the fiscal year ended
March 1, 2003 and reviewing the financial statements included in the Company's
quarterly reports on Form 10Q amounted to $150,000.
FINANCIAL INFORMATION SYSTEMS DESIGN AND IMPLEMENTATION FEES: No services
were performed by, or fees incurred to, Deloitte & Touche in connection with the
financial information services design and implementation projects for the fiscal
year ended March 1, 2003.
ALL OTHER FEES: Fees for employee benefit related services were billed by
Deloitte & Touche during the fiscal year ended March 1, 2003 amounted to
approximately $30,000.
The Company and the Audit Committee have considered whether other non-audit
services by Deloitte & Touche are compatible with maintaining the independence
of Deloitte & Touche in its audit of the Company.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE SHAREHOLDERS VOTE FOR
RATIFICATION OF THE APPOINTMENT OF BDO SEIDMAN. PROXIES SOLICITED HEREBY WILL BE
VOTED FOR THE PROPOSAL UNLESS A VOTE AGAINST THE PROPOSAL OR ABSTENTION IS
SPECIFICALLY INDICATED.
13
APPROVAL OF AMENDMENT
TO THE
AMENDED AND RESTATED
INCENTIVE STOCK OPTION AND APPRECIATION PLAN
PROPOSAL 3
The Board of Directors has approved, subject to the approval of the
Company's shareholders, an amendment to the Company's Amended and Restated
Incentive Stock Option and Appreciation Plan, as amended (the "Option Plan"),
which amendment extends the term of the Option Plan to July 28, 2013 and
provides that options and/or stock appreciation rights under the Option Plan may
be granted on or before July 28, 2013. Currently, the Option Plan expires on
July 28, 2003 and provides that no options and/or stock appreciation rights may
be granted under the Option Plan after such date. A copy of the Option Plan is
attached as Appendix A hereto.
The purpose of the Option Plan is to enable the Company to attract and
retain key employees and to secure for the Company the benefits of the incentive
inherent in ownership of the Company's equity securities by employees who are
responsible for the continuing growth and success of the Company. Grants under
the Option Plan may take the form of stock options ("Options"), including
corresponding stock appreciation rights.
The Company's Option Plan, formerly the 1983 Incentive Stock Option Plan,
was adopted by the Board of Directors and approved by the shareholders in July
1983, amended and restated upon the approval of both the Board of Directors, in
March 1986, and the shareholders, in May 1986, amended by the Board of Directors
in November 1987, amended in May 1993 upon approval of both the Board of
Directors and the shareholders and further amended in June 2000 upon approval of
both the Board of Directors and the shareholders.
The following is a summary of the Option Plan as now in effect.
COMMON STOCK SUBJECT TO THE AMENDED PLAN
The maximum number of shares of Common Stock that may be the subject of
awards under the Option Plan is 1,500,000. The Option Plan does not provide for
any maximum or minimum number of Options that may be granted to a single person.
However, the aggregate fair market value (determined as of the date an Option is
granted) of the Common Stock with respect to which incentive stock options
("ISOs") granted to any individual under the Option Plan (and any other plan of
the Company that can grant ISOs) which first become exercisable during any
calendar year may not exceed $100,000. ISOs may not be granted to an individual
who, at the time of grant, owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or any parent of
the Company, unless at the time of grant the exercise price of such ISO is at
least 110% of the fair market value of the Common Stock and such ISO by its
terms is not exercisable after the expiration of five years from the date of
grant.
AMENDED PLAN ADMINISTRATION
The Option Plan is administered by the Stock Option-Compensation Committee
(the "Committee"), currently consisting of Harvey A. Weinberg, David A. Messer
and Wilbur L. Ross, Jr., or in the absence of a duly constituted Committee, by
the Board of Directors of the Company. A member of the Committee may not vote
upon the granting of an Option or stock appreciation right ("SAR") to himself.
14
Subject to the express provisions of the Option Plan, the Committee has
authority, among other things: (i) to determine (a) the participants, (b) the
time of grant and exercise price of, and the number of shares of Common Stock to
be subject to the Options or SARs granted to each participant, (c) whether an
Option will be an ISO or a nonqualified option, (d) whether a SAR will be
related to an Option (whenever granted) and (e) the exercise period and exercise
terms of each Option and SAR; (ii) to construe the Option Plan and certificates
granted pursuant thereto; (iii) to establish, amend and rescind rules for
administering the Option Plan; and (iv) to make all other determinations deemed
by it to be necessary or advisable in administering the Option Plan which shall
be final and binding on all persons.
ELIGIBILITY
Under the Option Plan, Options and SARs may be granted only to key
employees of the Company (including directors and officers who are also
employees) based on the duties of the employees, their present and potential
contributions to the success of the Company and any other factor deemed relevant
by the Committee. As of June 13, 2003, the Company has approximately 250
employees who are eligible to receive grants under the Option Plan.
GRANTS UNDER THE AMENDED PLAN
INCENTIVE STOCK OPTIONS AND NONQUALIFIED OPTIONS. ISOs meeting the
requirements of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), and nonqualified options that do not meet such requirements are
both available for grant under the Option Plan. The exercise price of Options
will be set by the Committee and stated in the option agreement and, in the case
of ISOs, may not be less than 100% of fair market value of the underlying shares
on the date of grant (110% in the case of a more than 10% owner of Common
Stock).
STOCK APPRECIATION RIGHTS. The Committee may award SARs, which may or may
not be granted together with Options, under the Plan. Generally SARs permit the
holder thereof to receive an amount (in cash, Common Stock or a combination
thereof) equal to the number of shares of Common Stock with respect to which
SARs are exercised multiplied by the excess of the fair market value of the
Common Stock on the exercise date over the exercise price. In general, the
exercise of any portion of the SARs or any related option will cause a
corresponding reduction in the number of shares of Common Stock remaining
subject to SARs and related option.
EXERCISE OF OPTIONS AND SARS AND RESALE OF STOCK
Options and SARs granted under the Option Plan are exercisable at varying
times and amounts and in the manner determined by the Committee at the time of
grant, but in no event for more than a ten-year period (or a five-year period in
the case of a 10% or greater shareholder). Options and SARs may be exercised by
giving written notice to the Company, and with respect to Options, generally
accompanied by payment in full by cash or shares of Common Stock with an
equivalent market value or, by delivery of notes, property or in any other form.
Exercise of SARs related to an option granted under the Option Plan requires
surrender of the related option or portion thereof; and exercise of an Option
requires surrender of any related SAR.
Options and/or SARs may be exercised by the employee during employment by
the Company except if employment terminates by reason of death, disability or
retirement. If employment terminates on account of disability (as defined in
Section 22(e)(3) of the Code) or death, an Option or SAR may be exercised by the
employee or the employee's executor, administrator or such other party entitled
by law to succeed to the rights of the deceased, as the case may be, as to all
Common Stock subject to such Option or SAR, for six months following the
termination of employment (subject to the term of the Option or SAR); if
employment terminates by reason of retirement, an Option or SAR may be exercised
for three months following retirement (subject to the term of the Option or SAR)
to the extent it was exercisable on the date of retirement.
15
Common Stock acquired pursuant to the exercise of an Option may be resold
pursuant to an exemption, if available, from the registration provisions of the
Securities Act of 1933, as amended (the "Act"), including the exemption afforded
by Section 4(1) of the Act which will generally be available to the employee,
provided that the employee is not deemed to be an "affiliate" of the Company.
Affiliates (defined under the Act to include persons who directly or indirectly
control the Company) will not be able freely to resell Common Stock acquired
through the exercise of Options and SARs in reliance upon the exemption afforded
by Section 4(1) of the Act, but may make resales pursuant to another exemption
from registration under the Act, if available, including the exemption provided
by Rule 144, or pursuant to an appropriate resale prospectus filed as part of a
registration statement (if filed by the Company, in its discretion) covering
resale of the Common Stock by affiliates.
In addition, directors and executive officers of the Company and beneficial
owners of more than 10% of the Company's Common Stock should note the applicable
provisions of Section 16(a) and Section 16(b) of the Securities Exchange Act of
1934, as amended.
RIGHT TO TERMINATE EMPLOYMENT
The Option Plan does not impose an obligation (i) on the Company to
continue the employment of any holder of an Option and (ii) on the part of any
holder of an Option to remain in the employ of the Company.
NON-TRANSFERABILITY
Options and SARs granted under the Option Plan are not transferable other
than by will or by the laws of descent and distribution. During the lifetime of
the holder, Options and SARs may be exercised only by the holder thereof.
Options and SARs may not be assigned, transferred, pledged, hypothecated or
disposed of in any way (whether by operation of law or otherwise) except to the
extent expressly provided for in the Option Plan, and shall not be subject to
execution, attachment or similar process.
DURATION AND AMENDMENTS
The Option Plan will terminate on July 28, 2003 and no Option or SAR shall
be granted under it thereafter.
The Option Plan may be terminated at any time and may be modified or
amended in such manner as the Committee, or the Board, as the case may be, deems
advisable, provided, however, that the Committee or the Board, as the case may
be, may not make certain material amendments without the approval of the
shareholders. Notwithstanding the foregoing no termination, modification or
amendment of the Option Plan may materially alter or adversely affect any
outstanding grant under the Option Plan without the written consent of the
holder of the grant.
ADJUSTMENTS
The Committee or the Board of Directors, as the case may be, may
proportionally adjust the number of shares of Common Stock authorized to be
issued under the Option Plan for any increase or decrease in the number of
issued shares of Common Stock resulting from a subdivision or consolidation of
shares or other capital adjustment, or the payment of a stock dividend or other
increase or decrease in such shares, or other change in corporate or capital
structure, such as a merger, consolidation or reorganization.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE OPTION PLAN
The following summary generally describes the principal United States
federal income tax consequences of Options and SARs granted under the Option
Plan. It is general in nature and is not intended to cover all tax consequences
that may apply to a particular participant or to the Company. The provisions of
the Code and the regulations thereunder relating to these matters are
complicated and their impact in any one case may depend upon the particular
circumstances. This discussion is based on the Code as currently in effect and
does not address state, local or foreign tax matters.
16
NONQUALIFIED STOCK OPTIONS. If an Option that is not an ISO is granted in
accordance with the terms of the Option Plan, generally no income will be
recognized by the recipient at the time the Option is granted. On exercise of
such Option, the amount by which the fair market value of the Common Stock on
the date of the exercise exceeds the purchase price of such shares will
generally be taxable to the recipient as ordinary income, and generally will be
deductible for tax purposes by the Company (or one of its subsidiaries) in the
year in which the recipient recognizes the ordinary income. The disposition of
shares acquired upon exercise of any Option will ordinarily result in capital
gain or loss (long-term if the shares have been held for more than 12 months) in
an amount equal to the difference between the amount realized on such
disposition and their tax basis (i.e., generally the sum of the purchase price
and the amount of ordinary income recognized in connection with the exercise of
the Option).
INCENTIVE STOCK OPTIONS. If an ISO is granted in accordance with the terms
of the Option Plan, no income will be recognized by the recipient at the time
the ISO is granted. On exercise of an ISO, the recipient will generally not
recognize any income and the Company (or one of its Subsidiaries) will generally
not be entitled to a deduction for tax purposes. However, the difference between
the purchase price and the fair market value of the shares received on the date
of exercise will be treated as a positive adjustment in determining alternative
minimum taxable income, which may subject the recipient to the alternative
minimum tax. The disposition of shares acquired upon exercise of an ISO will
ordinarily result in long-term capital gain or loss. However, if the recipient
disposes of the shares acquired upon exercise of an ISO within two years after
the date of grant or within one year after the date of exercise (a
"disqualifying disposition"), the recipient will generally recognize ordinary
income, and the Company (or one of its subsidiaries) will generally be entitled
to a deduction for tax purposes, in the amount of the excess of the fair market
value of the Common Stock on the date the ISO is so exercised over the purchase
price (or the gain on sale, if less). Any excess of the amount realized by the
recipient on the disqualifying disposition over the fair market value of the
shares on the date of exercise of the ISO will ordinarily constitute long-term
or short-term capital gain (depending on the applicable holding period).
STOCK APPRECIATION RIGHTS. If a SAR is granted in accordance with the terms
of the Option Plan, no income will be recognized by the recipient at the time
the SAR is granted. The amount of any cash (or the fair market value of any
Common Stock) received upon the exercise of SARs under the Option Plan will be
included in the holder's ordinary income and the Company (or one of its
Subsidiaries) will be entitled to a deduction for such amount.
WITHHOLDING TAXES. To the extent a holder of an Option or a SAR recognizes
ordinary income in connection therewith, the Company may be required to withhold
applicable income taxes related thereto.
ERISA STATUS
The Option Plan is not subject to the provisions of the Employee Retirement
Income Security Act of 1976, as amended, nor is it qualified under Section
401(a) of the Code.
17
EQUITY COMPENSATION PLAN INFORMATION
The following table sets forth equity compensation plan information as of March
1, 2003:
------------------------------- ------------------------------------------------------------------------------------
Equity Compensation Plan Information
------------------------------- ------------------------------------------------------------------------------------
Number of securities
remaining available
Number of securities for future issuance
to be issued Weighted-average under equity
upon exercise of exercise price of compensation plans
outstanding options, outstanding options, (excluding securities
Plan category warrants and rights warrants and rights reflected in column (a))
------------- ------------------- ------------------- ------------------------
(a) (b) (c)
------------------------------- --------------------------- -------------------------- -----------------------------
Equity compensation
plans approved by
security holders ........ 991,150 $7.21 508,850
------------------------------- --------------------------- -------------------------- -----------------------------
Equity compensation
plans not approved
by security holders...... N/A N/A N/A
------------------------------- --------------------------- -------------------------- -----------------------------
Total .............. 991,150 $7.21 508,850
------------------------------- --------------------------- -------------------------- -----------------------------
The affirmative vote of the holders of a majority of the outstanding shares of
Common Stock is necessary for the approval of this amendment to the Option Plan.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE SHAREHOLDERS VOTE FOR THE ADOPTION OF
THE AMENDMENT TO THE OPTION PLAN. PROXIES SOLICITED HEREBY WILL BE VOTED FOR THE
PROPOSAL UNLESS A VOTE AGAINST THE PROPOSAL OR ABSTENTION IS SPECIFICALLY
INDICATED.
OTHER MATTERS
The Board of Directors does not know of any matters to be brought before
the Annual Meeting, except those set forth in the notice thereof. If other
business is properly presented for consideration at the Annual Meeting, the
persons named in the accompanying form of proxy intend to vote the proxies
therein in accordance with their best judgment on such matters.
NOTICE OF SHAREHOLDER PROPOSALS
Proposals of shareholders to be considered by the Company for inclusion in
the proxy material for the annual meeting in 2003, must be received by the
Company not later than February 1, 2004 and must comply with the proxy
solicitation rules of the Securities and Exchange Commission. In accordance with
Rule 14a - 4(c) (1) of the Securities Exchange Act of 1934, as amended,
management proxy holders intend to use their discretionary voting authority with
respect to any shareholder proposal raised at the annual meeting in 2004 as to
which the proponent fails to notify the Company on or before May 1, 2004 (45
days prior to the date on which this Proxy Statement was first mailed to
shareholders).
18
ANNUAL REPORT TO SHAREHOLDERS
The Company's Annual Report for the fiscal year ended March 1, 2003,
including financial statements, is being mailed to shareholders of the Company
with this Proxy Statement. The Annual Report does not constitute a part of the
Proxy Solicitation materials. Shareholders may without charge, obtain copies,
excluding certain exhibits, of the Company's Annual Report on Form 10-K filed
with the Securities and Exchange Commission. Requests for this Report should be
addressed to Investor Relations, Syms Corp, Syms Way, Secaucus, New Jersey
07094.
Your cooperation in giving this matter your immediate attention and
returning your proxies will be appreciated.
By Order of the Board of Directors
Antone F. Moreira
Assistant Secretary
June 13, 2003
19
APPENDIX A
SYMS CORP
AMENDED AND RESTATED
INCENTIVE STOCK OPTION AND APPRECIATION PLAN
1. PURPOSES OF THE PLAN
The purposes of this Incentive Stock Option and Appreciation Plan (the
"Plan") are to assist Syms Corp., a New Jersey corporation (the "Corporation"),
and its subsidiaries (hereinafter defined) in attracting and retaining key
employees and to secure for the Corporation and its subsidiaries the benefits of
the incentive inherent in ownership of the Corporation's equity securities by
employees who are responsible for the continuing growth and success of the
Corporation and its subsidiaries. The Plan is intended to allow the granting of
options which will be "incentive stock options" as defined in Section 422 of the
Internal Revenue Code of 1986, as amended ("Code"), and options that are not
incentive stock options ("nonqualified stock options"). The Plan is also
intended to allow the granting of stock appreciation rights ("SARs"). Except
with respect to options designated as nonqualified stock options, and stock
appreciation rights, all terms and conditions of this Plan and any option
agreements, and other instruments evidencing the grant of options pursuant
hereto, shall be construed in accordance with provisions of the Code applicable
to incentive stock options.
For the purposes of this Plan, the term "subsidiary" and/or
"subsidiaries" shall have the same meaning as the term "subsidiary corporation"
defined in Section 424(f) of the Code, as from time to time amended.
2. SHARES SUBJECT TO THE PLAN
Subject to the provisions of Section 14 of the Plan, an aggregate of
1,000,000 shares of Common Stock, par value $.05 per share, of the Corporation
("Common Stock"), are available for the granting of stock appreciation rights
and issuance upon the exercise of options under the Plan.
The shares to be issued upon the exercise of options under the plan may
be authorized but unissued shares of Common Stock or issued shares of Common
Stock which are held in the treasury of the Corporation. If an option or stock
appreciation right granted under the Plan shall expire or terminate for any
reason without having been exercised in full (other than an option or stock
appreciation right surrendered for cancellation upon exercise), the unpurchased
shares and the stock appreciation rights which were subject thereto shall,
unless the Plan shall have been terminated, be added to the shares otherwise
available for options and stock appreciation rights under the Plan.
3. TERMS OF THE PLAN
Subject to the provisions of Sections 15 and 17, the Plan shall
commence effective as of July 29, 1983, and options and/or stock appreciation
rights granted under the Plan must be granted no later than July 28, 2003.
4. ADMINISTRATION OF THE PLAN
The Plan shall be administered by a committee (the "Committee") which
shall consist of not less than two members who shall be appointed by the Board
of Directors of the Corporation or, in the absence of such a committee, by the
Board of Directors of the Corporation. All actions of the Committee or the Board
of Directors with respect to the Plan shall be taken in accordance with the
By-Laws of the Corporation. Directors of the Corporation who are either eligible
to receive options or stock appreciation rights or both, or to whom options or
stock appreciation rights or both have been granted, may vote on any matters
affecting the administration of the Plan or the granting of options and stock
appreciation rights under the Plan; provided, however, that no director shall
vote upon the granting of an option or stock appreciation right to himself, but
any such director may be counted in
determining the existence of a quorum at any meeting of the Board of Directors
at which the Plan is administered or action is taken with respect to the
granting of an option or stock appreciation right. Any action of the Committee
or the Board of Directors may be taken by a written instrument signed by all of
the members of the Committee or the Board of Directors, as the case may be, and
any action so taken by written consent shall be as fully effective as if it had
been taken by a majority of the members at a meeting duly held and called.
Subject to the express provisions of the Plan, the Committee or the
Board of Directors, as the case may be, shall have the authority, in its
discretion: (i) to determine the individuals to receive options or stock
appreciation rights or both, the times when they shall receive them, whether a
stock appreciation right shall be related to an option (whenever granted), the
number of shares to be subject to each option and the number of shares with
respect to which stock appreciation rights are to be granted, the exercise price
(which must be a lawful consideration) for shares of Common Stock subject to
each option and the exercise price (which must be a lawful consideration) of
each stock appreciation right, the term of each option or stock appreciation
right, the date each option or stock appreciation right shall become
exercisable, the adjustment, if any, in the exercise price of an option or a
stock appreciation right and the number of shares subject to any option or stock
appreciation right upon the happening of any event described in paragraph 14;
whether an option shall be an incentive stock option; whether an option or stock
appreciation right granted hereunder shall be exercisable in whole, in part or
in installments, and, if in installments, the number of shares to be subject to
each installment, the date each installment shall become exercisable and the
term of each installment; to accelerate the date of exercise of any installment;
to determine whether shares may be issued upon exercise of an option as partly
paid and, if so, the dates when future installments of the exercise price shall
become due and the amounts of such installments; to determine the other terms
and provisions of each option or stock appreciation right granted under the
Plan; (ii) to construe the respective option certificates or stock appreciation
right certificates and the Plan; (iii) to establish, amend and rescind rules and
regulations for the administration of the Plan; and (iv) to make all other
determinations deemed by it necessary or advisable for administering the Plan.
The determinations of the Committee or the Board of Directors, as the case may
be, on the matters referred to in this Section 4 shall be conclusive.
5. ELIGIBILITY AND SELECTION
Only key employees (including employees who are officers or directors)
of the Corporation or of any of its subsidiaries are eligible to receive options
or stock appreciation rights or both under the Plan. For the purposes of the
Plan, the term "key employees" shall mean and include all persons who have
responsibility in the management, administration or supervision of the business
or affairs of the Corporation or any of its subsidiaries or are engaged in the
development, sale, marketing or promotion of the services of the Corporation or
any of its subsidiaries. Directors of the Corporation who are not employees of
the Corporation or of a subsidiary are not eligible to receive options or stock
appreciation rights under the Plan. In determining the employees to whom options
or stock appreciation rights shall be granted under the Plan and the number of
shares of Common Stock as to which options or stock appreciation rights may be
granted to such employees, the Committee or the Board of Directors, as the case
may be, shall consider the duties of the employees, their present and potential
contributions to the success of the business of the Corporation, and such other
factors as the Committee or the Board of Directors deem relevant in furthering
the purposes of the granting of such options or stock appreciation rights and
the interests of the Corporation. An employee may receive more than one option
or stock appreciation right or both under the Plan.
6. LIMITATIONS ON AMOUNT OF OPTIONS
Except to the extent that the Board designates all or a portion of an
option as a nonqualified stock option, the aggregate fair market value
(determined as of the date the options are granted) of shares of Common Stock as
to which options are exercisable for the first time by an individual during any
calendar year (under this Plan and all other plans of the Corporation providing
for the grant of options qualifying as "incentive stock options" under
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Section 422 of the Code) shall not exceed $100,000. If an option is granted
pursuant to which the aggregate fair market value of shares with respect to
which it first becomes exercisable in any calendar year by an individual exceeds
such $100,000 limitation, the portion of such option which is in excess of the
$100,000 limitation shall be treated as a non-qualified option pursuant to
Section 422(d)(1) of the Code.
7. EXERCISE PRICE
The exercise price for each share of Common Stock issuable upon the
exercise of an option (other than nonqualified stock options, for which the
exercise price must be a lawful consideration determined by the Committee or
Board of Directors) granted under the Plan shall not be less than the fair
market value (or in the case of an option granted to any person who, at the time
of the grant of such option, is the owner of more than ten percent (10%) of the
total combined voting power of all classes of stock of the Corporation, not less
than 110% of the fair market value) of a share of Common Stock at the time of
granting of the option, as determined by the Committee or the Board of
Directors, provided that the method of determination shall not be inconsistent
with any regulations applicable to "incentive stock options" which may be
promulgated by the Internal Revenue Service or the Secretary of the Treasury.
The exercise price of a stock appreciation right related to an option shall be
the price of the related option. The exercise price (which must be a lawful
consideration) of a stock appreciation right not related to an option shall be
determined by the Committee or Board of Directors at the time the stock
appreciation right is granted.
8. TERMS OF OPTIONS AND STOCK APPRECIATION RIGHTS
Options and stock appreciation rights under the Plan shall be
exercisable as shall be determined by the Committee or the Board of Directors,
as the case may be, at the time of grant; PROVIDED, HOWEVER, that options and
stock appreciation rights granted thereunder shall be exercisable for a period
not exceeding ten (10) years from the date such option or stock appreciation
right is granted; PROVIDED, HOWEVER, that an option granted to any person who,
at the time such option is granted, is the owner of stock possessing more than
ten percent (10%) of the total combined voting power of all classes of stock of
the Corporation, must expire no later than five (5) years after the date of
grant of the option. Options and stock appreciation rights shall be subject to
earlier termination as hereinafter provided.
9. STOCK APPRECIATION RIGHTS
Subject to and in accordance with the provisions of this Plan and the
relevant instrument, (a) upon exercise of a stock appreciation right related to
an option, the holder will be entitled to receive an amount equal to the excess
of the fair market value of the shares covered by the related options
surrendered, or portion thereof, over the aggregate option price of such shares,
and (b) upon exercise of a stock appreciation right not related to an option,
the holder will be entitled to receive an amount equal to the excess of the fair
market value of the shares covered by the stock appreciation right over the
aggregate exercise price of such stock appreciation right.
10. EXERCISE OF OPTIONS AND STOCK APPRECIATION RIGHTS
Each option shall be exercised, in whole or in part, as to such number
of shares of Common Stock and at such time or times as the Committee or the
Board of Directors shall have determined at the time of grant. Except as
provided in Sections 11 and 12 hereof, the holder of an option (other than a
nonqualified stock option) may exercise the option only if the holder is at the
time of exercise in the employ of the Corporation or a subsidiary of the
Corporation or was employed within the proceeding three months before the date
of exercise. Options shall be exercised only by the giving by the holder thereof
of written notice to the Corporation at its principal office, or at such other
office as may be designated by the Corporation, specifying the number of shares
purchased and accompanied by payment in full by cash, certified or bank
cashier's check, delivery of notes containing terms approved by the Committee or
the Board of Directors, shares of Common Stock of the Corporation owned by the
holder of the option (except upon the exercise of an option which was originally
granted under the Corporation's Qualified Stock Option Plan), or by any other
property, or in any other form, acceptable to the Committee of the
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Board of Directors, as the case may be. An option may be exercised by an
employee as to all or part of the shares covered thereby by surrendering for
cancellation the option and any related stock appreciation right at the time of
payment for shares purchased. Certificates representing the shares of stock
purchased upon exercise shall be issued as promptly as practicable thereafter.
The holder of an option shall not have any of the rights of a stockholder of the
Corporation with respect to the shares of Common Stock issuable upon exercise of
the option until one or more certificates evidencing such shares of Common Stock
shall have been issued to the holder of the option. In no event may a fraction
of a share be purchased or issued under the Plan.
A stock appreciation right shall be exercisable on such date or dates
and during such period as shall be determined pursuant to the provisions of the
instrument evidencing such stock appreciation right. A stock appreciation right
related to an option may be exercised only when the related option is eligible
to be exercised and shall expire no later than the expiration of the related
option. A stock appreciation right shall be exercised by the holder giving
written notice thereof on the prescribed form and surrendering for cancellation
the related option, if any.
11. TERMINATION OF EMPLOYMENT
Except as provided in Section 12, no option or stock appreciation right
granted under the Plan shall be exercisable after the holder thereof shall have
ceased to be an employee of the Corporation or any of its subsidiaries and,
except as provided in Section 12, upon the termination of employment, any such
option or stock appreciation right and all rights thereunder, to the extent that
such rights shall not have been exercised, shall terminate immediately. Options
and stock appreciation rights granted under the Plan shall not be affected by
any change of employment so long as the holder continues to be an employee of
the Corporation or of any subsidiary of the Corporation.
12. EXERCISE UPON DEATH, DISABILITY OR RETIREMENT OF THE EMPLOYEE
a. If the holder of an option or stock appreciation right dies while
employed by the Corporation or any of its subsidiaries, the option or
stock appreciation right may be exercised as to all shares subject to
the option or stock appreciation right by the executor or administrator
of such deceased employee or by such other person at the time entitled
by law to the rights of such deceased employee under the option or
stock appreciation right, at any time within six (6) months after
death, but in no event after the expiration of the term of the option
or stock appreciation right.
b. In the event that the employment of the holder of any option or stock
appreciation right by the Corporation or a subsidiary of the
Corporation is terminated by reason of the "disability" of the holder
of the option or stock appreciation right, the option or stock
appreciation right may be exercised as to all shares subject to the
option or stock appreciation right by the holder thereof at any time
within six (6) months after the date of such termination of employment,
but in no event after the expiration of the term of the option or stock
appreciation right. For purposes of the Plan, the term "disability"
shall mean a physical or mental disability as defined in Section
22(e)(3) of the Code.
c. In the event that the employment of the holder of any option or stock
appreciation right by the Corporation or a subsidiary of Corporation is
terminated by reason of the retirement of the holder of the option or
stock appreciation right, the option or stock appreciation right may be
exercised (to the extent otherwise exercisable on the date of the
retirement of the holder of the option or stock appreciation right) by
the holder thereof at any time within three (3) months after the date
of such retirement, but in no event after the expiration of the term of
the option or stock appreciation right.
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13. NON-TRANSFERABILITY OF OPTIONS AND STOCK APPRECIATION RIGHTS
Options and stock appreciation rights shall not be transferable
otherwise than by the last will and testament of the holder of the option or
stock appreciation right or the applicable laws of descent and distribution, and
during the lifetime of the holder options and stock appreciation rights may be
exercised only by the holder thereof. Options and stock appreciation rights may
not be assigned, transferred, pledged, hypothecated or disposed of in any way
(whether by operation or law or otherwise) except to the extent expressly
provided for in the Plan, and shall not be subject to execution, attachment or
similar process.
Any assignment, transfer, pledge, hypothecation or other disposition of
any option or stock appreciation right attempted contrary to the provisions of
this Plan, or any levy of execution, attachment or other process attempted upon
an option or stock appreciation right, will be null and void and without effect.
Any attempt to make such assignment, transfer, pledge, hypothecation or other
disposition of an option or stock appreciation right or any attempt to make any
such levy of execution, attachment or other process will cause the option or
stock appreciation right to terminate immediately upon the happening of any such
event if the Corporation, at any time, should, in the sole discretion of the
Committee or the Board of Directors, so elect, by written notice to the employee
or to the person then entitled to exercise the option or stock appreciation
right under the provisions of Section 12 hereof; PROVIDED, HOWEVER, that any
such termination of the option or stock appreciation right under the foregoing
provisions of this Section 13 will not prejudice any rights or remedies which
the Corporation or any subsidiary may have under the Plan, any certificate,
instrument or otherwise.
14. ADJUSTMENTS
If (a) the Corporation shall at any time be involved in a transaction
to which subsection (a) of Section 424 of the Code is applicable, (b) the
Corporation shall declare a dividend payable in, or shall subdivide or combine
its Common Stock, or (c) any other event shall occur which, in the judgment of
the Committee or the Board of Directors, necessitates action by way of adjusting
the terms of the outstanding options, the Committee or the Board of Directors,
as the case may be, shall take any such action as in its judgment shall be
necessary to preserve to the holders of options and stock appreciation rights,
rights substantially proportionate to the rights existing prior to such event.
To the extent that such action shall include an increase or decrease in the
number of shares of Common Stock subject to options and/or stock appreciation
rights outstanding under the Plan, the aggregate number of shares of Common
Stock available under Section 2 of the Plan for issuance upon exercise of such
outstanding options and exercise of such stock appreciation rights and of
additional options and stock appreciation rights which may be granted shall be
increased or decreased, as the case may be, proportionately. No action shall be
taken by Committee or by the Board of Directors under the provisions of this
Section 14 which, in its judgment, would constitute a modification, extension or
renewal of an option (within the meaning of Section 424(h) of the Code), other
than a nonqualified stock option, or would prevent an option from qualifying as
an "incentive stock option" (within the meaning of Section 422 of the Code). The
determination of the Committee or the Board of Directors, as the case may be,
with respect to any matter referred to in this Section 14 shall be conclusive
and binding upon each holder of an option or stock appreciation right under the
Plan.
15. TERMINATION AND AMENDMENT OF THE PLAN
a. Unless sooner terminated, as hereinafter provided, this Plan shall
terminate on July 28, 2003, and no options or stock appreciation
rights shall be granted hereunder after that date. The Board of
Directors may, without further approval by the stockholders, at any
time terminate or amend this Plan without notice, or make such
modifications of this Plan as it shall deem advisable; provided,
however, that the Board of Directors may not, without prior approval
by the holders of a majority of the outstanding shares of Common Stock
of the Corporation, (i) increase the maximum number of shares of
Common Stock as to which options or stock appreciation rights or both
may be granted under the Plan (except as
A-5
contemplated by the provisions of Section 14 hereof), (ii) extend the
term during which options or stock appreciation rights or both may be
granted under the Plan (except as provided in Paragraph (c) of this
Section 15), (iii) permit the exercise of an option or stock
appreciation right after the date on which such option or stock
appreciation right would otherwise terminate pursuant to the terms
thereof; or (iv) reduce the exercise price per share to less than the
fair market value of a share of Common Stock on the date the option
(other than a nonqualified stock option) is granted, or, in the case
of any option (other than a nonqualified stock option) granted to an
individual who, on the date of the grant of the option, is the owner
of more than ten percent (10%) of the total combined voting power of
all classes of stock of the Corporation, 110% of the fair market value
of a share of Common Stock (except, in both cases, as contemplated by
the provisions of Section 14 hereof). No termination, amendment or
modification of the Plan may, without the consent of the person to
whom any option and/or stock appreciation right theretofore has been
granted, adversely affect the rights of such person under such option
or stock appreciation right or any unexercised portion thereof.
b. Notwithstanding the limitation set forth in Paragraph (a) of this
Section 15, the Plan and any option and the number of shares as to
which any option under the Plan shall have been granted may be
reduced, retroactively at any time, to conform to the provisions of
the Code and the regulations promulgated thereunder, in order that
options (other than those designated nonqualified stock options) under
the Plan may qualify as "incentive stock options" within the meaning
of the Section 422 of the Code, and no such amendment shall be
considered prejudicial to the rights of any holder of an option.
c. Notwithstanding anything to the contrary contained in this Plan, the
period during which options may be granted under the Plan may be
extended by the Board of Directors (without stockholder approval) to
such later date within which options granted under the Plan may
qualify as "incentive stock options" under the Code.
16. SUBSTITUTIONS AND ASSUMPTIONS OF OPTIONS AND STOCK APPRECIATION RIGHTS
OF CERTAIN CONSTITUENT CORPORATIONS
Anything in this Plan to the contrary notwithstanding, the Board of
Directors may, without further approval by the stockholders, substitute new
options for prior options and new stock appreciation rights for prior stock
appreciation rights of a constituent corporation (as hereinafter defined) or
assume the prior options or stock appreciation rights or both of such
constituent corporation. The term "constituent corporation" shall mean any
corporation which has been merged into or consolidated with the Corporation, or
whose assets or stock have been purchased or acquired by or liquidated into the
Corporation or by or into one or more subsidiaries of the Corporation, or any
parent or any subsidiary of any such corporation.
17. INDEMNIFICATION COMMITTEE
In addition to such other rights of indemnification as they may have as
directors or as members of the Committee, the members of the Committee shall be
indemnified by the Corporation against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in connection with the defense
of any action, suit or proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan or any option or stock
appreciation rights granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal
counsel selected by the Corporation) or paid by them in satisfaction of a
judgment in any such action, suit or proceedings, except in relation to matters
as to which it shall be adjudged in such action, suit or proceeding that such
Committee member is liable for negligence or misconduct in the performance of
his duties; provided that within 60 days after institution of any such action,
suit or proceeding a Committee member shall in writing offer the Corporation the
opportunity, at its own expense, to handle and defend the same.
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18. EFFECTIVENESS OF THE PLAN
The plan shall become effective upon adoption by the Board of Directors
of the Corporation; provided, however, that the Plan shall be submitted for
approval by the stockholders of the Corporation no later than twelve (12) months
after the date of adoption of the Plan by the Board of Directors. Should the
stockholders of the Corporation fail to approve the Plan within such
twelve-month period, all options and/or stock appreciation rights granted
thereunder shall be and become null and void.
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SYMS CORP
AMENDMENT TO THE
AMENDED AND RESTATED
INCENTIVE STOCK OPTION AND APPRECIATION PLAN
The first sentence of Paragraph 2 of the Amended and Restated Incentive
Stock Option and Appreciation Plan (the "Plan") of Syms Corp, a New Jersey
corporation (the "Corporation"), adopted by the Board, in March 1986, and
approved by the stockholders, in May 1986, further amended by the Board in
November 1987, and further amended in May 1993 upon approval of both the Board
and the stockholders, is hereby deleted in its entirety and the following
substituted in lieu thereof:
2. SHARES SUBJECT TO THE PLAN.
Subject to the provisions of Section 14 of the Plan, the aggregate of
1,500,000 shares of Common Stock, par value $.05 per share, of the Corporation
("Common Stock"), are available for the granting of stock appreciation rights
and issuance upon the exercise of options under the Plan.
A-8
SYMS CORP
ANNUAL MEETING OF SHAREHOLDERS - JULY 17, 2003
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned shareholder of Syms Corp, a New Jersey corporation (the
"Company"), hereby appoints Sy Syms and Marcy Syms, and each of them with full
power to act without the other, as proxy for the undersigned, with full power of
substitution, to vote and otherwise represent all shares of common stock of the
Company held by the undersigned at the Annual Meeting of Shareholders of the
Company (receipt of a copy of the Notice of such meeting, and Proxy Statement
being acknowledged) on July 17, 2003 at 10:30 a.m., at the offices of Syms Corp,
Syms Way, Secaucus, New Jersey 07094, upon the following matters and upon such
other business as may properly come before the meeting and any and all
adjournment(s) or postponement(s) thereof, with the same effect as if the
undersigned were present and voting such shares. The undersigned hereby revokes
any proxy previously given with respect to such shares.
THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED IN ACCORDANCE WITH THE
SPECIFICATIONS MADE. IF THIS PROXY IS EXECUTED BUT NO SPECIFICATION IS MADE, THE
SHARES REPRESENTED BY THIS PROXY WILL BE VOTED "FOR" EACH OF THE BOARD OF
DIRECTORS' NOMINEES AND "FOR" EACH OF THE PROPOSALS. THE PROXIES, IN THEIR
DISCRETION, ARE AUTHORIZED TO VOTE UPON ANY OTHER MATTERS THAT MAY PROPERLY COME
BEFORE THE ANNUAL MEETING OR ANY ADJOURNMENT(S) OR POSTPONEMENT(S) THEREOF.
-------------
SEE REVERSE
SIDE
-------------
(CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE)
ANNUAL MEETING OF SHAREHOLDERS OF
SYMS CORP
JULY 17, 2003
Please date, sign and mail
your proxy card in the
envelope provided as soon
as possible.
Please detach and mail in the envelope provided.
--------------------------------------------------------------------------------
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK
YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE [x]
--------------------------------------------------------------------------------
1. The election of the following persons as Directors of the Company
to serve for the respective terms set forth in the accompanying
Proxy Statement:
NOMINEES:
|_| FOR ALL NOMINEES O Sy Syms
O Marcy Syms
|_| WITHHOLD AUTHORITY O Antone F. Moreira
FOR ALL NOMINEES O Harvey A. Weinberg
O David A. Messer
|_| FOR ALL EXCEPT O Wilbur L. Ross, Jr.
(See instructions below)
INSTRUCTION: To withhold authority to vote for any individual nominee(s), mark
"FOR ALL EXCEPT" and fill in the circle next to each nominee you
wish to withhold, as shown here: O
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FOR AGAINST ABSTAIN
2. To ratify the appointment of BDO Seidman, LLP as |_| |_| |_|
independent accountants of the Company for the fiscal
year ending February 28, 2004.
3. To approve an amendment to the Syms Corp Amended and |_| |_| |_|
Restated Incentive Stock Option and Appreciation Plan
extending the term of the Plan from July 28, 2003 to
July 28, 2013.
4. In their discretion with respect to any other matter that may properly come
before the meeting or any and all adjournment(s) or postponement(s) thereof.
--------------------------------------------------------------------------------
To change the address on your account, please check the box
at right and indicate your new address in the address space
above. Please note that changes to the registered name(s) on |_|
the account may not be submitted via this method.
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Signature of Shareholder ___________________________ Date: ________________
Signature of Shareholder ___________________________ Date: ________________
NOTE: Please sign exactly as your name or names appear on this Proxy. When
shares are held jointly, each holder should sign. When signing as
executor, administrator, attorney, trustee or guardian, please give full
title as such. If the signer is a corporation, please sign full corporate
name by duly authorized officer, giving full title as such. If signer is
a partnership, please sign in partnership name by authorized person.