SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN THE STATEMENTS FILED PURSUANT TO RULE
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. 6)*
Syms Corp
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(Name of Issuer)
Common Stock, par value $0.05 per share
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(Title of Class of Securities)
871551107
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(CUSIP Number)
Marcy Syms
c/o Syms Corp
Syms Way
Seacaucus, New Jersey 07094
(201) 902-9600
--------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 30, 2004
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ]
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Exchange Act") or otherwise subject to the liabilities of that
section of the Exchange Act but shall be subject to all other provisions of the
Exchange Act (however, see the Notes).
SCHEDULE 13D
CUSIP NO. 871551107 Page 2 of 7
_____________________________________________________________________________
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (Entities Only)
Sy Syms
_____________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
_____________________________________________________________________________
3 SEC USE ONLY
_____________________________________________________________________________
4 SOURCE OF FUNDS
Not applicable
_____________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
_____________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
_____________________________________________________________________________
NUMBER OF 7 SOLE VOTING POWER
SHARES 6,046,383
______________________________________________________________
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY None
______________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 6,046,383
______________________________________________________________
PERSON 10 SHARED DISPOSITIVE POWER
WITH None
_____________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,326,846
_____________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
_____________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
53.2%
_____________________________________________________________________________
14 TYPE OF REPORTING PERSON
IN
_____________________________________________________________________________
SCHEDULE 13D
CUSIP NO. 871551107 Page 3 of 7
_____________________________________________________________________________
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (Entities Only)
The Sy Syms Revocable Living Trust
_____________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
_____________________________________________________________________________
3 SEC USE ONLY
_____________________________________________________________________________
4 SOURCE OF FUNDS
Not applicable
_____________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
_____________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
_____________________________________________________________________________
NUMBER OF 7 SOLE VOTING POWER
SHARES 6,046,383
______________________________________________________________
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY None
______________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 6,046,383
______________________________________________________________
PERSON 10 SHARED DISPOSITIVE POWER
WITH None
_____________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,326,846
_____________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
_____________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
53.2%
_____________________________________________________________________________
14 TYPE OF REPORTING PERSON
OO
_____________________________________________________________________________
SCHEDULE 13D
CUSIP NO. 871551107 Page 4 of 7
Item 1 Security and Issuer.
-------------------
This statement constitutes Amendment No. 6 ("Amendment No. 6") to the
Statement on Schedule 13D (the "Schedule 13D") filed with the
Securities and Exchange Commission by Sy Syms ("Mr. Syms") and The Sy
Syms Revocable Living Trust, dated March 17, 1989 (collectively, the
"Reporting Persons") in connection with their ownership of the Common
Stock, $0.05 par value per share (the "Common Stock"), of Syms Corp, a
New Jersey corporation (the "Company"), with its principal executive
offices at Syms Way, Secaucus, New Jersey 07094.
In accordance with Exchange Act Rule 13d-2, this Amendment No. 6
amends and supplements only information that has materially changed
since the June 26, 2003 filing by the Reporting Persons of Amendment
No. 5 to the Schedule 13D. Unless otherwise indicated herein, terms
used but not otherwise defined in this Amendment No. 6 shall have the
same respective meanings herein as are ascribed to such terms in the
Schedule 13D.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
Item 3 of the Schedule 13D is hereby amended and supplemented by
adding the following:
On January 30, 2004, by virtue of the Reporting Persons forming a
"group" with Marcy Syms ("Ms. Syms"), by the execution of a Voting
Agreement (as hereinafter defined), the Reporting Persons were deemed
to have acquired beneficial ownership of the 2,280,463 shares
beneficially owned on such date by Ms. Syms. The Reporting Persons did
not expend any funds in connection with the formation of the group or
execution of the Voting Agreement.
Item 4. Purpose of Transaction.
----------------------
Item 4 of the Schedule 13D is hereby amended and supplemented by
adding the following:
On January 30, 2004, Ms. Syms, individually and as trustee of The
Laura Merns Living Trust, dated February 14, 2003, and the Reporting
Persons, entered into a Voting Agreement, dated as of January 30,
2004, a copy of which is included as Exhibit 1 to this Amendment No. 6
and is incorporated by reference herein (the "Voting Agreement").
Pursuant to the Voting Agreement, each of Ms. Syms and the Reporting
Persons agreed that at any meeting of the shareholders of the Company,
however called, and in any action by consent of the shareholders of
the Company, each of Ms. Syms and the Reporting Persons shall vote or
cause to be voted or execute a written consent in favor of certain
Covered Matters (as hereinafter defined) which are approved by a
majority of the members of the Company's board of directors who are
present and voting at a meeting for which a quorum is present or which
are approved by the unanimous written consent of the directors acting
without a meeting, and in the case of the elections of directors, for
those individuals who are the nominees of the board of directors or,
if the Company has a nominating committee, who are the nominees of the
nominating committee. Covered Matters include: (i) the election of
directors; (ii) the ratification and approval of independent
accountants; (iii) the approval of any amendment to the Company's
certificate of incorporation; and (iv) the approval of any stock
option plan, bonus plan or other equity-based incentive plan for
employees, consultants and/or directors of the Company, or of any
amendment to any of the foregoing.
SCHEDULE 13D
CUSIP NO. 871551107 Page 5 of 7
The information set forth in response to this Item 4 is qualified in
its entirety by reference to the Voting Agreement.
Except as set forth in this Statement, none of the Reporting Persons
have any plan or proposals that relate to or would result in any of
the transactions described in subparagraphs (a) through (j) of Item 4
of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
------------------------------------
Item 5 of the Statement is hereby amended and supplemented by adding
the following:
5(a) Prior to the formation of a group with Ms. Syms on January 30,
2004, the Reporting Persons beneficially owned, within the meaning of
Exchange Act Rule 13d-3, 6,046,383 shares, representing approximately
40% of the outstanding shares of the Company.
Upon the formation of the group with Ms. Syms on January 30, 2004, the
Reporting Persons were deemed to have acquired all shares beneficially
owned by Ms. Syms on that date and, as a result, the Reporting Persons
were deemed to have beneficial ownership, within the meaning of
Exchange Act Rule 13d-3, on that date of 8,326,846 shares,
representing approximately 53.2% of the outstanding shares of the
Company. The additional shares deemed acquired by the Reporting
Persons consisted of 2,280,463 shares which Ms. Syms beneficially
owned, of which (i) Ms. Syms is the direct beneficial owner of
1,592,675 shares of Common Stock (which amount includes her options to
purchase 537,500 shares of Common Stock) over which she has the sole
voting and dispositive power, and (ii) 687,788 shares are held by the
Laura Merns Living Trust, dated February 14, 2003, between Laura
Merns, as settlor, and Marcy Syms, as trustee, of which Ms. Syms is an
indirect beneficial owner, and as the sole trustee thereunder, has the
sole voting and dispositive power over such Common Stock held by the
Trust.
As of the date of this Statement, the Reporting Persons
beneficially owned, within the meaning of Exchange Act Rule 13d-3,
8,326,846 shares, representing approximately 53.2% of the outstanding
shares of the Company. These shares consisted of the 8,326,846 shares
described above.
5(b) The Reporting Persons have sole power to vote and to dispose of
the 6,046,383 shares they beneficially owned prior to the formation of
a group with Ms. Syms on January 30, 2004. The Reporting Persons do
not have any power, whether sole or shared, to vote or to dispose of
any of the 2,280,463 shares beneficially owned by Ms. Syms prior to
the formation of the group.
5(c) No transactions in the shares have been effected during the past
60 days by the Reporting Persons.
5(d)Not applicable.
5(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
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Item 6 of the Schedule 13D is hereby amended and supplemented by
adding the following:
Except for the Voting Agreement described above, to the best of the
knowledge of the Reporting Persons, there are no contracts,
agreements, understandings or relationships (legal or otherwise),
including, but not limited to, transfer or voting of any of the
securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division
SCHEDULE 13D
CUSIP NO. 871551107 Page 6 of 7
of profits or loss, or the giving or withholding of proxies, and any
other person, with respect to any securities of the Issuer, including
any securities pledged or otherwise subject to a contingency the
occurrence of which would give another person voting power or
investment power over such securities.
The matters set forth in Items 3 and 4 above are incorporated in this
Item 6 by reference as if fully set forth herein.
Item 7. Material to be Filed as Exhibits.
--------------------------------
Item 7 of the Schedule 13D is hereby amended and supplemented to
include the following:
1. Voting Agreement, dated as of January 30, 2004, between Marcy Syms,
individually and as trustee of The Laura Merns Living Trust, dated
February 14, 2003, and Sy Syms, individually and as trustee of The Sy
Syms Revocable Living Trust, dated March 17, 1989.
SCHEDULE 13D
CUSIP NO. 871551107 Page 7 of 7
Signatures
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After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
/s/ Sy Syms
---------------------------
Sy Syms
/s/ Sy Syms
---------------------------
Sy Syms, trustee under The Sy Syms Revocable
Living Trust, dated March 17, 1989, as amended
Dated: February 4, 2004
Exhibit 1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of January 30, 2004, between Marcy Syms,
individually and as trustee of The Laura Merns Living Trust, dated February 14,
2003, and Sy Syms, individually and as trustee of The Sy Syms Revocable Living
Trust, dated March 17, 1989, as amended (each, a "Shareholder" and together, the
"Shareholders").
Recitals
A. As of the date hereof, each Shareholder owns, beneficially and/or of
record, shares of common stock, $0.05 par value per share (the "Common Stock"),
of Syms Corp, a New Jersey corporation (the "Company"), which represent, in the
aggregate, more than 50% of the voting power of the Company.
B. Each Shareholder desires to enter into this Agreement with respect to
the voting of the shares of Common Stock now held, beneficially and/or of
record, by such Shareholder, and the voting of any additional shares of Common
Stock which may in the future be held, beneficially and/or of record, by such
Shareholder (collectively, the "Shares"), on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Agreement to Vote. (a) In recognition of the Shareholders' common goals
and objectives as shareholders of the Company and to ensure the orderly
management and operation of the Company, each Shareholder hereby agrees that at
any meeting of the shareholders of the Company, however called, and in any
action by consent of the shareholders of the Company, each Shareholder shall
vote or cause to be voted or execute a written consent in favor of all Covered
Matters (as hereinafter defined) which are approved by a majority of the members
of the Company's board of directors who are present and voting at a meeting for
which a quorum is present or which are approved by the unanimous written consent
of the directors acting without a meeting, and, in the case of the election of
directors, for those individuals who are the nominees of the board of directors
or, if the Company has a nominating committee, who are the nominees of the
nominating committee.
(b) For purposes hereof, "Covered Matters" shall mean any of the
following:
(i) the election of directors;
(ii) the ratification and approval of independent accountants;
(iii) the approval of any amendment to the Company's certificate of
incorporation; and
(iv) the approval of any stock option plan, bonus plan or other
equity-based incentive plan for employees, consultants and/or
directors of the Company, or of any amendment to any of the
foregoing.
(c) Nothing contained herein shall be deemed to vest in either
Shareholder any direct or indirect ownership with respect to the Shares
owned by the other party hereto, and notwithstanding anything in this
Agreement to the contrary, each Shareholder shall retain any and all of his
or her rights, powers and authorities as a shareholder of the Company.
(d) Except as specifically set forth in this Agreement, nothing herein
shall be deemed to limit or restrict the ability of each Shareholder to
sell, hold, dispose and/or encumber all or any portion of his or her
Shares.
(e) Any stock certificates representing the Shares owned by a
Shareholder shall bear an appropriate legend relating to this Agreement.
2. Representations and Warranties. Each Shareholder represents and warrants
to other party hereto as follows:
(a) Such Shareholder has the legal capacity and the power to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by such Shareholder and constitutes the valid and binding
obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms.
(b) The execution, delivery and performance by such Shareholder of
this Agreement and the consummation by such Shareholder of the transactions
contemplated hereby will not, with or without the giving of notice or the
lapse of time, or both, conflict with or violate (i) any provision of law,
rule or regulation to which such Shareholder is subject, (ii) any order,
judgment or decree applicable to such Shareholder or (iii) any provision of
any agreement, contract or other instrument to which such Shareholder is a
party or by which he or she is bound. The execution and delivery of this
Agreement by such Shareholder does not, and the performance of this
Agreement by such Shareholder shall not, require any consent, approval,
authorization or permit of, or filing with or notification to, any court or
arbitrator or any governmental body, agency or official, except for such
filings as may be required under the Securities Exchange Act of 1934, as
amended.
(c) Such Shareholder has not (i) entered into any other voting
agreement with respect to his or her Shares which remains in effect as of
the date hereof or (ii) granted any proxy or power of attorney with respect
to his or her Shares which remain in effect as of the date hereof.
3. No Inconsistent Agreements. Each Shareholder hereby covenants and agrees
that, except as contemplated by this Agreement, so long as this Agreement
remains in effect, he or she (a) shall not enter into any other voting agreement
with respect to his or her Shares and (b) shall not grant a proxy or power of
attorney with respect to his or her Shares, in each such case, which is
inconsistent with its obligations pursuant to this Agreement.
4. Shareholder Capacity. Nothing in this Agreement shall limit or restrict
either Shareholder in acting in his or her capacity as a director of the Company
and exercising his or her fiduciary duties and responsibilities relating
thereto, it being understood that this Agreement shall apply to each Shareholder
solely in his or her capacity as a shareholder of the Company and shall not
apply to each Shareholders' actions, judgments or decisions as a director of the
Company.
5. Amendments and Waivers. No amendment or waiver of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by both
Shareholders. No waiver by either party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of warranty or covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
-2-
6. Term of the Agreement. This Agreement shall expire upon the tenth
anniversary of the date hereof; provided that either party hereto may earlier
terminate this Agreement upon not less than 18 months prior written notice to
the other party hereto; provided, further, that any Shareholder may withdraw
from this Agreement upon not less than 30 days prior written notice at any time
after the date on which the Shareholders, together with their transferees
subject to this Agreement, cease to own more than 50% of the voting power of the
Company.
7. Miscellaneous. (a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New Jersey without regard to the
conflicts of law principles thereof.
(b) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supercedes all
prior agreements and understandings, both written and oral, between the
parties hereto with respect to the subject matter hereof. If any of the
provisions of this Agreement are for any reason declared by the final
judgment of a court of competent jurisdiction to be unenforceable or
ineffective, those provisions shall be deemed severable from the other
provisions of this Agreement and the remainder of this Agreement shall
remain in full force and effect.
(c) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto (individually and as
attorney-in-fact, trustee, executor, custodian or otherwise, if applicable)
and their respective successors, assigns, heirs, legal representatives and
personal representatives. If a Shareholder effectuates any transfer to
which the preceding sentence applies, he or she shall, as a condition to
such transfer, first obtain an agreement in writing from such transferee to
be bound by all of the terms and provisions of this Agreement with the same
force and effect as if such transferee were (and such transferee shall be
considered) a "Shareholder" for all purposes of this Agreement as of the
date hereof. Notwithstanding anything to the contrary contained herein, a
transferee acquiring any Shares from a Shareholder in a public offering or
via a public sale shall not be bound by the terms and conditions of this
Agreement.
(d) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the day and year first above written.
/s/ Marcy Syms
-----------------------------
Marcy Syms, individually and as trustee
of the Laura Merns Living Trust, dated
February 14, 2003
/s/ Sy Syms
-----------------------------
Sy Syms, individually, and as trustee under
The Sy Syms Revocable Living Trust,
dated March 17, 1989, as amended
-3-