MEETINGS AND COMMITTEES OF THE BOARD OF
DIRECTORS
During
fiscal 2009 there were twelve meetings of the Board of Directors. During fiscal
2009, all directors attended all of the meetings of the Board of Directors and
of the committees of which he or she was a member.
Based on
information supplied to it by the Directors, the Board of Directors has
determined that three of the current directors, Bernard H. Tenenbaum, Henry M.
Chidgey and Thomas E. Zanecchia, are independent under the listing standards
of the NASDAQ Stock Market (NASDAQ) and the rules and regulations promulgated
by the Securities and Exchange Commission (the SEC). The Board of Directors
has made such determinations based on the fact that none of such persons have
had, or currently have, any material relationship with the Company or its
affiliates or any executive officer of the Company or his or her affiliates,
that would impair their independence, including, without limitation, any
commercial, industrial, banking, consulting, legal, accounting, charitable or
familial relationship.
The Board
of Directors has determined that the Company is a controlled company (as
defined in the NASDAQ Marketplace Rules) based on the fact that more than 50%
of the voting power of the Companys voting stock is held by Marcy Syms,
individually and as trustee of The Laura Merns Living Trust, dated February 14,
2003 and as President of a general partnership that controls The Cortlandt
Enterprises LLP which entity holds Syms Corp common shares. As a result, the
Company is exempt from the provisions of the NASDAQ governance standards
requiring that (i) a majority of the board consist of independent directors,
(ii) the nominating committee be composed entirely of independent directors and
(iii) the compensation committee be composed entirely of independent directors.
The
committees of the Board of Directors include an Audit Committee, an Executive
Committee, a Stock Option Committee, a Compensation Committee and a Nominating
& Corporate Governance Committee. Each of the aforementioned committees has
written charters, copies of which are available on the Companys website at www.syms.com.
The charters will be provided in print to any shareholder who submits a written
request for the charters, to the Companys Secretary, Syms Corp, One Syms Way,
Secaucus, New Jersey 07094.
The Audit
Committee has the principal function of reviewing the adequacy of the Companys
internal system of accounting controls, conferring with the independent
registered public 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
registered public accountants, reviewing and approving related party
transactions and considering other appropriate matters regarding the financial
affairs of the Company. The current members of the Audit Committee are Bernard
H. Tenenbaum (Chairman), Henry M. Chidgey and Thomas E. Zanecchia. None of
these individuals is, or has ever been, an officer or employee of the Company
and all are considered independent for the purposes of the NASDAQ governance
standards.
In addition
to meeting the independence standards of NASDAQ, each member of the Audit
Committee is financially literate and meets the independence standards
established by the SEC. The Board of Directors has also determined that Bernard
H. Tenenbaum has the requisite attributes of an audit committee financial
expert as defined by regulations of the SEC and that such attributes were
acquired through relevant education and experience. The Audit Committee met four
times during fiscal 2009.
The
Executive Committee is authorized to exercise 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. Marcy Syms
and Bernard H. Tenenbaum are members of the Executive Committee. The Executive
Committee did not meet during fiscal 2009.
The Stock
Option Committee reviews and recommends to the Board of Directors remuneration
arrangements and compensation plans for the Companys officers and key
employees, administers the Companys stock option and appreciation plans and
determines the officers and key employees who are to be granted equity based
incentive compensation awards under such plans. The current members of the
Stock Option Committee are Bernard H. Tenenbaum, Henry M. Chidgey and Thomas E.
Zanecchia, none of whom is, or has ever been, an officer or employee of the
Company and all of whom are independent in terms of the NASDAQ governance
standards. The Stock Option Committee did not meet during fiscal 2009.
The
Compensation Committee is responsible for reviewing and approving for the Chief
Executive Officer and other executives of the Company annual base salary, and for
determining director compensation and benefit programs (other than those
programs administered by the Stock Option Committee). The full Board of
Directors reviews and approves the recommendations of the Compensation
Committee for the annual base salary of the
5
Chief Executive Officer and Chairman of the Board. Marcy Syms and
Bernard H. Tenenbaum are members of the Compensation Committee. The
Compensation Committee did not meet during fiscal 2009, as all of its
determinations were made by the full Board.
The
Nominating & Corporate Governance Committee seeks to, among other matters;
find qualified individuals to serve as directors of the Company. Marcy Syms and
Bernard H. Tenenbaum are members of the Nominating & Corporate Governance
Committee. The Nominating & Corporate Governance Committee did not meet
during fiscal 2009, as all of its determinations were made by the full Board.
Minimum
Qualifications:
The Company does not set specific
criteria for directors except to the extent required to meet applicable legal,
regulatory and stock exchange requirements, including, but not limited to, the
independence requirements of NASDAQ and the SEC, as applicable. Nominees for
director will be selected on the basis of outstanding achievement in their
personal careers; board experience; wisdom; integrity; ability to make
independent, analytical inquiries; understanding of the business environment;
the ability to represent fairly all shareholders without advocating for any
particular shareholder constituency; the absence of a conflict of interest, and
the willingness to devote adequate time to Board of Directors duties. While the
selection of qualified directors is a complex and subjective process that
requires consideration of many intangible factors, the Board believes that each
director should have a basic understanding of (i) principal operational and
financial objectives and plans and strategies of the Company, (ii) results of
operations and financial condition of the Company and of any significant
subsidiaries or business segments, (iii) the need for adopting and implementing
internal controls, and (iv) the relative standing of the Company and its
business segments in relation to its competitors.
Nominating
Process:
The following paragraphs describe the
processes that the Board or the Nominating & Corporate Governance Committee
will take should it be necessary to fill vacancies or should the Board decide
to expand its size.
The
Nominating & Corporate Governance Committee is willing to consider
candidates submitted by a variety of sources (including incumbent directors,
shareholders, Company management and third party search firms) when reviewing
candidates to fill vacancies and/or expand the Board of Directors. If a vacancy
arises or the Board of Directors decides to expand its membership, the
Nominating & Corporate Governance Committee will ask each director to
submit a list of potential candidates for consideration. The Nominating &
Corporate Governance Committee will then evaluate each potential candidates
educational background, employment history, outside commitments and other
relevant factors to determine whether he/she is potentially qualified to serve
on the Board of Directors. At that time, the Nominating & Corporate
Governance Committee also will consider potential nominees submitted by
shareholders in accordance with the procedures adopted by the Board of
Directors, by the Companys management and, if the Nominating & Corporate
Governance Committee deems it appropriate, by an independent third party search
firm retained to provide potential candidates. The Nominating & Corporate
Governance Committee seeks to identify and recruit the best available
candidates, and it intends to evaluate qualified shareholder nominees on the
same basis as those submitted by Board of Directors members, Company
management, third party search firms or other sources.
After
completing this process, the Nominating & Corporate Governance Committee
will determine whether one or more candidates are sufficiently qualified to
warrant further investigation. If the process yields one or more desirable
candidates, the Nominating & Corporate Governance Committee will rank them
by order of preference, depending on their respective qualifications and the
Companys needs. The Nominating & Corporate Governance Committee will then
contact the preferred candidate(s) to evaluate their potential interest and to
set up interviews with the Nominating & Corporate Governance Committee. All
such interviews are held in person, and include only the candidate and the
Nominating & Corporate Governance Committee members. Based upon interview
results and appropriate background checks, the Nominating & Corporate
Governance Committee then decides whether it will recommend the candidates
nomination to the full Board of Directors.
When
nominating an incumbent director for re-election at an annual meeting, if asked
by the Board, the Nominating & Corporate Governance Committee will consider
the directors performance on the Board of Directors and the directors
qualifications in respect of the criteria referred to above.
Consideration
of Shareholder Nominated Directors:
The Nominating
& Corporate Governance Committee will consider candidates for the Board of
Directors submitted by shareholders in a timely manner in accordance with our
by-laws and applicable securities laws. Any shareholder wishing to submit a
candidate for consideration
6
should submit a notice in accordance with the procedures set forth
under the caption Shareholder Nominations and Proposals.
Corporate
Governance
Corporate
Governance Guidelines and Code of Business Conduct and Ethics:
The Board of Directors has adopted Corporate Governance Guidelines. The Board
of Directors has also adopted a Code of Business Conduct and Ethics. The
Corporate Governance Guidelines and the Code of Business Conduct and Ethics are
available on the Companys website at www.syms.com. A copy of the Corporate
Governance Guidelines and a copy of the Code of Business Conduct and Ethics are
available in print to any shareholder who submits a written request for such
copies to the Companys Secretary at Syms Corp, One Syms Way, Secaucus, New
Jersey 07094.
Code of
Ethics for Senior Financial Officers:
The Board of Directors has
adopted a Code of Ethics applicable to the Companys Chief Executive Officer,
Chief Financial Officer and Controller, which is available on the Companys website
at www.syms.com. A copy of the Code of Ethics for Senior Financial Officers is
available in print to any shareholder who submits a written request for such
Code of Ethics to the Companys Secretary at Syms Corp, One Syms Way, Secaucus,
New Jersey 07094.
Non-Management
Directors:
Non-management directors meet in executive
sessions at least twice a year and, if the group of non-management directors
includes any director who is not independent, the independent directors meet
at least twice a year in an executive session of only independent directors.
The independent directors select the presiding director. Bernard H. Tenenbaum
was appointed the presiding director for all non-management meetings. As
appropriate, some of the executive sessions of the non-management directors may
be with the Chief Executive Officer and others will be conducted outside the
presence of the Chief Executive Officer and any other management officials.
Communications
between Shareholders and the Board of Directors:
Shareholders and other interested persons seeking to communicate with the Board
of Directors should submit any communications in writing to the Companys
Secretary at Syms Corp, One Syms Way, Secaucus, New Jersey 07094. Any such
communication must state the number of shares beneficially owned by the
shareholder making the communication. The Companys Secretary or an Assistant
Secretary will forward such communication to the full Board of Directors or to
any individual director or directors to whom the communication is directed.
Attendance
at Annual Meetings:
All Directors are expected to
attend the fiscal 2009 Annual Meeting in person and be available to address
questions or concerns raised by shareholders. All Directors attended the fiscal
2008 annual meeting of shareholders.
COMPENSATION
OF DIRECTORS
Each member
of the Board of Directors who is not an officer or employee of the Company
receives a directors fee, presently established at the rate of $5,000 per
meeting, for attending regular or special meetings of the Board of Directors.
Additionally, each committee member of the Board of Directors receives $1,000
for any committee meeting attended by such member. Travel expenses of such
directors related to attendance at Board and committee meetings is reimbursed.
Directors who are officers or employees of the Company do not receive any
additional compensation by reason of their service as directors.
The
following table sets forth certain information regarding the compensation we
paid to each individual who served as a director of the Company during fiscal
2009, other than Marcy Syms. See the Summary Compensation Table below for
information pertaining to compensation paid to Marcy Syms.
|
|
|
|
|
|
|
|
Name
|
|
Fees Paid ($)
|
|
Option Awards
|
|
Total ($)
|
|
|
|
|
|
|
|
|
|
|
Bernard H.
Tenenbaum
|
|
50,000
|
|
|
|
50,000
|
|
Henry M.
Chidgey
|
|
46,000
|
|
|
|
46,000
|
|
Thomas E.
Zanecchia
|
|
46,000
|
|
|
|
46,000
|
|
7
EXECUTIVE OFFICERS
The
Companys executive officers, as well as additional information with respect to
such persons, are set forth below:
|
|
|
|
|
Name
|
|
Age
|
|
Position
|
|
|
|
|
|
|
Marcy Syms
|
|
59
|
|
Chief
Executive Officer, President and Chairman of the Board
|
Gary Roberts
|
|
53
|
|
Senior Vice
President, Operations
|
Myra
Butensky
|
|
50
|
|
Vice
President, Mens Tailored Clothing
|
James Donato
|
|
53
|
|
Vice
President, Operations
|
Elyse Marks
|
|
56
|
|
Vice
President, Information Technology
|
John Tyzbir
|
|
55
|
|
Vice
President, Human Resources
|
Mary A. Mann
|
|
59
|
|
Vice
President, Ladies
|
Karen Day
|
|
51
|
|
Vice
President, Childrens
|
Raymond R.
Siconolfi
|
|
56
|
|
Controller,
Chief Accounting Officer, acting chief financial officer and acting Secretary
|
Information
with respect to Marcy Syms is set forth on page two of this Proxy Statement
under Election of Directors.
GARY
ROBERTS joined the Company in 2007 as Director of Logistics and was appointed
Senior Vice President of Operations in June, 2008. Immediately prior to joining
Syms, Mr. Roberts was the General Manager at Levitz Furniture (a retailer of
home furnishings) during 2007. Prior thereto, he was General Manager for
Logistics at both Toys R Us and Kids R Us and held various other managerial
posts for these retailers during his tenure from 1985 to 2007. Prior thereto,
he held a variety of managerial and executive positions in logistics and
operations for Gimbels (a clothing retailer).
MYRA
BUTENSKY has been Vice President, Divisional Merchandise Manager, Mens
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 clothing buyer. Prior
to joining the Company in 1991, Ms. Butensky was a buyer with Popular Trading
Club, Inc. and also spent 10 years with Macys in a number of buying positions.
JAMES
DONATO has been Vice President, 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 engaged in store management as
a District Manager and Store Manager of the Company.
ELYSE MARKS
has been Vice President, IT, 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 involved 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.
MARY MANN
has been Vice President, Ladies, of the Company since April 2007. From 2005 to
2007 she was Merchandise Manager of A & E stores (a womens clothing
retailer). From 2001 to 2004 she was merchandise manager of the Company. Prior
to 2001, Ms. Mann was Assistant Vice President of Dress Barn for 10 years.
KAREN DAY
has been Vice President, Childrens, since April 2007. From October 2003 to
March 2007, Ms. Day was Divisional Merchandise Manager, Childrens. From July
1996 to October 2003, Ms. Day held buying positions in childrens and ladies
clothing in the Company. Prior to joining the Company, Ms. Day has held
merchandising positions in Kidco, The Childrens Place and Abraham and Strauss.
8
RAYMOND R.
SICONOLFI has been the Chief Accounting Officer, acting chief financial officer
and acting Secretary of the Company since February 2010. From 2001 to 2010 Mr.
Siconolfi was the Corporate Controller at Syms. From 1999 to 2000 he was the
Controller at Mikasa, Inc., a retailer of decorative table top products. From
1995 to 1999 he was the Controller for JR Tobacco of America. Prior to 1995 he
was the Controller at Corporate Express for 13 years.
The Companys
officers are elected annually by the Board of Directors and hold office at the
discretion of the Board of Directors.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth
the beneficial ownership of shares of Common Stock as of May 15, 2010, except
as otherwise set forth in the notes below for:
|
|
|
|
|
|
§
|
each
director;
|
|
|
§
|
each
executive officer named in the summary compensation table;
|
|
|
§
|
each person
owning of record or known by us, based on information provided to us by the
persons named below, to own beneficially more than 5% of our common stock;
and
|
|
|
§
|
all
directors and executive officers 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.
|
|
|
|
|
|
|
|
Name and Address of Beneficial Owner
|
|
Amount and Nature of
Beneficial Ownership
of Common Stock
|
|
Percent
of
Class
|
|
|
|
|
|
|
|
|
Marcy Syms
One Syms Way, Secaucus, NJ 07094
|
|
7,955,294
|
(1) (2)
|
|
55.1
|
%
|
|
|
|
|
|
|
|
|
|
Franklin
Advisory Services, LLC
777 Mariners Island Blvd.
San Mateo, CA 94404
|
|
1,430,000
|
(3)
|
|
9.9
|
%
|
|
|
|
|
|
|
|
|
|
Dimensional
Fund Advisors, Inc.
6300 Bee Cave Road
Austin, TX 78746
|
|
1,214,622
|
(4)
|
|
8.4
|
%
|
|
|
|
|
|
|
|
|
|
Bernard H.
Tenenbaum
|
|
100
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
Henry M.
Chidgey
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thomas E.
Zanecchia
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All
directors and executive officers as a group
(12 persons).
|
|
7,955,394
|
|
|
55.1
|
%
|
|
*
Less than one percent
(1) As
reported in a beneficial ownership report filed with the SEC on Form 4 on July
28, 2008, the ownership of shares of Company common stock beneficially owned by
Sy Syms and Marcy Syms was reorganized on July 28, 2008. On that date, the Sy
Syms Revocable Living Trust, dated March 17, 1989 (the Sy Syms Trust),
contributed 5,896,087 shares of Company common stock to The Cortlandt
Enterprises Limited Liability Partnership (the Partnership). In consideration
for such contribution, the Partnership issued its sole limited partnership
interest to the Sy Syms Trust. The Sy Syms Trust subsequently sold its limited
partnership interest in the Partnership to the Syms Family Irrevocable Trust
(the Syms Family Trust) in exchange for a promissory
9
note. Marcy Syms is the sole shareholder, president and sole director
of Our Best Customer, Inc. (Best Customer), the corporate general partner of
the Partnership. As the controlling shareholder of Best Customer, Marcy Syms
has the sole power to vote and dispose of the shares of Company common stock
owned by the Partnership and thus is deemed to be the beneficial owner of the
shares of Company common stock owned by the Partnership. Marcy Syms is also a
trustee and the beneficiary of the Syms Family Trust, which is the sole limited
partner of the Partnership.
(2)
Represents (a) 5,896,087 shares of Company common stock held by the
Partnership, (b) 946,932 shares of Company common stock owned directly by Marcy
Syms, (c) 697,592 shares of Company common stock held in the Laura Merns Living
Trust, dated February 14, 2003 (the Merns Trust), (d) 317,183 shares of
Company common stock held in the Marcy Syms Revocable Living Trust, dated
January 12, 1990, as amended (the Marcy Syms Trust) and (e) fully vested
options entitling Marcy Syms to purchase 97,500 shares of Company common stock.
Marcy Syms is the sole Trustee of the Merns Trust; she disclaims beneficial
ownership of the shares owned by the Merns Trust except to the extent of her
pecuniary interest in the Merns Trust. Marcy Syms retains the sole voting power
with respect to the 317,183 shares of Company common stock held by the Marcy
Syms Trust and the right to revoke the Marcy Syms Revocable Living Trust at any
time.
(3)
Franklin Advisors, Inc. (Franklin) has sole voting and dispositive power with
respect to 1,430,000 shares. This information is based upon a Schedule 13F
publicly filed by Franklin in March 2010.
(4)
Dimensional Fund Advisors, Inc. (Dimensional) has sole dispositive power with
respect to 1,214,622 shares. This information is based upon a Schedule 13G
publicly filed by Dimensional in March 2010.
Of the
directors, Messrs. Chidgey and Zanecchia do not beneficially own any shares of
Company common stock. Other than Marcy Syms, none of the executive officers
named in the summary compensation table, beneficially own any shares of Company
common stock.
EXECUTIVE
COMPENSATION
Compensation
Discussion and Analysis
Compensation Philosophy:
The
Companys compensation program is designed to integrate compensation with the
achievement of the Companys business objectives and to ensure that total
compensation paid to executive officers and key employees is fair, reasonable
and competitive. The Company has structured its executive compensation to
motivate executives to achieve the business goals set by the Company and reward
the executives for achieving such goals. This philosophy also includes aligning
and rewarding management for increasing shareholder value. The Companys
compensation levels and individual programs are assessed against a number of
benchmarks including pay levels of other retail and vendor organizations and
information from published surveys of the retail and general industry.
The Compensation Committee, through its
executive compensation policy, strives to provide compensation rewards based
upon corporate and individual performance. It seeks to maintain a relatively
simple compensation program in order to avoid the administrative costs which
the Compensation Committee believes are inherent in multiple complex
compensation plans and agreements.
The Company does not have employment
agreements with any of its executive officers or key employees.
Base Salary:
The
base salary for Company personnel is intended to provide competitive
remuneration for services provided to the Company over a one-year period and is
designed to compensate an individual for his or her level of responsibility and
performance.
Bonus:
Bonuses
may be awarded based upon individual performance as measured against individual
goals and objectives, combined with the Companys attainment of corporate goals
and objectives.
Long-Term Incentive:
The
Stock Option Committee of the Board of Directors has the responsibility of
administering the Companys stock option plans and is, therefore, responsible
for authorizing all grants of options. The Stock Option Committee is comprised
entirely of non-employee directors that have no direct or indirect
10
material interest in, or relations with, the Company outside of their
position as a Director. The Stock Option Committee currently consists of the
following members of the Companys Board of Directors: Bernard H. Tenenbaum,
Henry M. Chidgey and Thomas E. Zanecchia.
Stock Option Plans:
The
Companys Amended and Restated Stock Option and Appreciation Plan (the Stock
Option Plan) allows for the granting of incentive stock options, as defined in
Section 422A of the Internal Revenue Code of 1986 (as amended), non-qualified
stock options and stock appreciation rights. The plan requires that incentive
stock options be granted at an exercise price not less than the fair market
value of the Companys common stock on the date the option is granted. The
exercise price of the option for holders of more than 10% of the voting rights
of the Company must be not less than 110% of the fair market value of the
Common Stock on the date of grant. Non-qualified options and stock appreciation
rights may be granted at any exercise price, subject to limitations imposed
pursuant to Section 409A of the Internal Revenue Code which penalizes employees
who receive options and stock appreciation rights granted at a price below the
then current fair market value. The Company has reserved 1,500,000 shares of
common stock for issuance thereunder. No option or stock appreciation rights
may be granted under the Stock Option Plan after July 28, 2013. The maximum
exercise period for any option or stock appreciation right under the plan is
ten years from the date the option is granted (five years for any optionee who
holds more than 10% of the voting rights of the Company).
In 2005, the Company adopted the 2005
Stock Option Plan (the 2005 Plan). The 2005 Plan permits the grant of
options, share appreciation rights, restricted shares, restricted share units,
performance units, performance shares, cash-based awards and other share-based
awards. Key employees, non-employee directors, and third party service
providers of the Company who are selected by a committee designated by the
Board of Directors of the Company are eligible to participate in the 2005 Plan.
The maximum number of shares issuable under the 2005 Plan is 850,000, subject
to certain adjustments in the event of changes to the Companys capital
structure.
The 2005 Plan requires that incentive
stock options be granted at an exercise price not less than the fair market
value of the Companys common stock on the date the option is granted. The
exercise price of such options for holders of more than 10% of the voting stock
of the Company must be not less than 110% of the fair market value of the
Companys common stock on the date of grant. The exercise price of
non-qualified options and stock appreciation rights must not be less than fair
market value.
The maximum exercise period for any
option or stock appreciation right under the 2005 Plan is ten years from the
date the option is granted (five years for any incentive stock options issued
to a person who holds more than 10% of the voting stock of the Company).
The fair value of each option award is
estimated on the date of grant using a Black-Scholes option valuation model.
Expected volatility is based on the historical volatility of the price of the
Companys stock. The risk-free interest rate is based on U.S. Treasury issues
with a term equal to the expected life of the option. The Company uses
historical data to estimate expected dividend yield, expected life and
forfeiture rates. There were no options granted during fiscal 2009, and all
options previously issued are fully vested.
11
SUMMARY
COMPENSATION TABLE FOR FISCAL 2009, 2008 and 2007
The following table sets forth
compensation earned during fiscal 2009, 2008 and 2007 by the Companys Chief
Executive Officer, Chief Financial Officer and by the three other most highly
paid executive officers whose total compensation for fiscal 2009 exceeded
$100,000:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name and Principal Position
|
|
Fiscal
Year
|
|
Salary
|
|
Option
Awards
|
|
Bonus
|
|
All Other
Compen-
sation (1)
|
|
Total
Compen-
sation ($)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marcy Syms
|
|
|
2009
|
|
$
|
582,309
|
|
|
|
|
|
|
|
|
|
|
$
|
582,309
|
|
Chief Executive Officer
|
|
|
2008
|
|
|
642,033
|
|
|
|
|
|
|
|
|
|
|
|
642,033
|
|
|
|
|
2007
|
|
|
647,010
|
|
|
|
|
|
|
|
|
8,975
|
|
|
655,985
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Philip A. Piscopo (2)
|
|
|
2009
|
|
$
|
284,631
|
|
|
|
|
|
300,000
|
|
|
|
|
$
|
584,631
|
|
Chief Financial Officer
|
|
|
2008
|
|
|
235,040
|
|
|
|
|
|
|
|
|
|
|
|
235,040
|
|
|
|
|
2007
|
|
|
13,560
|
|
|
|
|
|
|
|
|
|
|
|
13,560
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gary Roberts (3)
|
|
|
2009
|
|
$
|
225,004
|
|
|
|
|
|
25,000
|
|
|
|
|
$
|
250,004
|
|
Senior Vice President, Operations
|
|
|
2008
|
|
|
212,892
|
|
|
|
|
|
|
|
|
|
|
|
212,892
|
|
|
|
|
2007
|
|
|
57,700
|
|
|
|
|
|
|
|
|
|
|
|
57,700
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Myra Butensky
|
|
|
2009
|
|
$
|
205,542
|
|
|
|
|
|
|
|
|
|
|
$
|
205,542
|
|
Vice President - Mens Clothing
|
|
|
2008
|
|
|
204,876
|
|
|
|
|
|
|
|
|
|
|
|
204,876
|
|
|
|
|
2007
|
|
|
207,788
|
|
|
|
|
|
|
|
|
8,085
|
|
|
212,873
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mary A. Mann
|
|
|
2009
|
|
$
|
202,956
|
|
|
|
|
|
|
|
|
|
|
$
|
202,956
|
|
Vice President Ladies Clothing
|
|
|
2008
|
|
|
202,386
|
|
|
|
|
|
|
|
|
|
|
|
202,386
|
|
|
|
|
2007
|
|
|
198,016
|
|
|
|
|
|
|
|
|
7,177
|
|
|
205,193
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Raymond R. Siconolfi (4)
|
|
|
2009
|
|
$
|
112,800
|
|
|
|
|
|
|
|
|
|
|
$
|
112,800
|
|
Controller and Chief Accounting Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) Amounts
in this column represent the Companys contribution under the Companys
profit sharing plan.
|
(2) Mr. Piscopo
joined the Company effective February, 2008 and resigned from the Company in
February, 2010.
|
(3) Mr.
Roberts joined the Company effective October, 2007.
|
(4) Mr.
Siconolfi became an executive officer upon Mr. Piscopos resignation in
February 2010. The compensation set forth above with respect to Mr. Siconolfi
represents the compensation paid to Mr. Siconolfi in all capacities for
fiscal 2009.
|
12
Outstanding
Equity Awards at Fiscal Year-End
The
following table provides information for each of the executive officers named
in the Summary Compensation Table with respect to stock option awards
outstanding at February 27, 2010. At that date, such executive officers did not
hold any other equity awards.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Number of securities
underlying
unexercised
options at
February 27, 2010
(Exercisable)
|
|
Number of securities
underlying
unexercised
options at
February 27, 2010
(Unexercisable)
|
|
Option
Exercise
Price
|
|
Option
Expiration
Date
|
|
|
|
|
|
|
|
|
|
|
|
|
Marcy Syms
|
|
97,500
|
|
|
|
|
|
$
|
15.01
|
|
|
7/21/2015
|
|
Philip A.
Piscopo
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gary Roberts
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Myra
Butensky
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mary A. Mann
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Raymond R. Siconolfi
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
No SARs are held by the named individuals.
Option Exercises During the
Fiscal Year Ended February 27, 2010
There were
no options exercised during fiscal 2009 by any of the executive officers named
in the Summary Compensation Table. None of those officers own any shares of
restricted stock, restricted stock units or similar instruments that vested
during fiscal 2009.
Retirement Benefits
Each of the
Companys executive officers who were employed prior to December 31, 2006 is
entitled to participate in the Syms Corp Defined Benefit Plan on the same basis
as all other eligible executives. This plan was frozen and no additional
benefits will accrue, effective December 31, 2006.
Each of the
Companys executive officers is entitled to participate in the Companys
defined contribution 401K Plan on the same basis as all other eligible
employees. In addition, the Company also has a Profit Sharing Plan to which the
Company makes a discretionary contribution based on its performance. All
non-union employees can participate in this plan once they become eligible.
Amounts contributed to the accounts of the executive officers named in the
Summary Compensation Table are set forth in that Table.
13
PENSION
PLAN
The
following table sets forth the estimated annual benefits payable on retirement
to persons in specified remuneration and years of participation classifications
under the Companys 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
|
|
Participation
|
|
Participation
|
|
Participation
|
|
Participation
|
|
Participation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
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
|
|
|
175,000
|
|
|
|
19,950
|
|
|
26,600
|
|
|
33,250
|
|
|
33,250
|
|
|
33,250
|
|
|
200,000
|
|
|
|
22,800
|
|
|
30,400
|
|
|
38,000
|
|
|
38,000
|
|
|
38,000
|
|
A Pension
Plans participants 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 $200,000 (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, 2009:
Marcy Syms, 31 or more years; Myra Butensky 18 or more years; Mary A. Mann, 7
or more years; and Raymond R. Siconolfi, 8 or more years. Neither Philip A.
Piscopo nor Gary Roberts were eligible as the Pension Plan was frozen as of
December 31, 2006. 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 25 years of
service. A participant is entitled to be paid his or her benefits upon
retirement at age 65. If a participant has completed at least 15 years of
service, he or she may retire upon reaching age 55 but the benefits he or she
receives will be actuarially reduced to reflect the longer period during which
he or she 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 the benefit payable over different periods of time
depending on the aggregate amount vested and payment option elected.
The
following table sets forth, for each of the executive officers named in the
Summary Compensation Table, information regarding the benefits payable under
the Pension Plan, which represents the only plan of the Company that provides
for payments or other benefits at, following, or in connection with an
officers retirement. In accordance with the SECs rules, the following table
does not provide information regarding tax-qualified defined contribution plans
or nonqualified defined contribution plans.
2009
Pension Benefit
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Plan Name
|
|
No. of years
credit service
|
|
Present Value of
Accrued Benefits ($)
|
|
Change in Pension
Value 2009 vs 2008 ($)
|
|
|
|
|
|
|
|
|
|
|
Marcy Syms
|
|
(1)
|
|
31
|
|
183,672
|
|
|
12,541
|
|
Philip A. Piscopo
|
|
(1)
|
|
n/a
|
|
|
|
|
|
|
Gary Roberts
|
|
(1)
|
|
n/a
|
|
|
|
|
|
|
Myra Butensky
|
|
(1)
|
|
18
|
|
56,591
|
|
|
3,661
|
|
Mary A. Mann
|
|
(1)
|
|
7
|
|
18,083
|
|
|
1,232
|
|
Raymond R. Siconolfi
|
|
(1)
|
|
8
|
|
15,150
|
|
|
1,012
|
|
(1) Syms Corp
Defined Benefit Plan
COMPENSATION
COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Sy Syms,
Marcy Syms and Bernard H. Tenenbaum served as members of the Compensation
Committee during parts of fiscal 2009. Bernard Tenenbaum, Henry Chidgey and
Thomas Zanecchia served as members of the Stock Option Committee throughout
fiscal 2009. Sy Syms was the Chairman of the Board of Directors of the Company
until his death and was succeeded in that role by Marcy Syms. Marcy Syms is the
Companys Chief Executive Officer and President. No member of the Compensation
Committee or Stock Option Committee had any relationship requiring disclosure
by the Company under Item 404 of Regulation S-K since the beginning of fiscal
2009.
14
REPORT
OF THE COMPENSATION AND STOCK OPTION COMMITTEES
The
Compensation Committee, through its 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 Compensation Committee believes are
inherent in multiple complex compensation plans and agreements. The Stock
Option Committee, which is comprised solely of independent directors,
administers the issuances of equity-based compensation arrangements under the
Companys stock incentive compensation plans.
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 Compensation Committee remains cognizant of the
Board of Directors responsibility to enhance shareholder value. The
Compensation Committee utilizes cash bonuses, when it feels a bonus is merited,
based on factors such as an executives individual performance and the
Companys 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 Companys option plans, which align the interests of
executives with those of shareholders.
Determination
of Marcy Syms compensation as the Companys Chief Executive Officer for fiscal
2009 reflects the Companys performance and a comparison with chief executive
officer compensation of the Companys competitors, and also reflects
recognition of Ms. Syms unique, ongoing contribution to the growth, success and
viability of the Company.
It
is the responsibility of the 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 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
compensation in excess of this limit. Therefore, the Compensation Committee has
not taken any action to comply with the limit.
The
Compensation Committee and the Stock Option Committee have reviewed the
Compensation Discussion and Analysis and discussed that analysis with
management. Based on their review and discussions with management, the
committees recommended to our Board of Directors that the Compensation
Discussion and Analysis be included in the Companys fiscal 2009 proxy
statement.
|
|
|
COMPENSATION AND STOCK OPTION COMMITTEES
|
|
Marcy Syms
|
|
Bernard H.
Tenenbaum
|
|
Henry M.
Chidgey
|
|
Thomas E.
Zanecchia
|
SECTION
16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section
16(a) of the Securities Exchange Act of 1934, as amended (the Exchange Act),
requires the Companys officers and directors, and persons who own more than
10% of a registered class of the Companys 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.
To the
Companys knowledge, based solely on its review of the copies of such forms
received by it, all filing requirements applicable to its executive officers,
directors, and greater than 10% shareholders were met during fiscal 2009.
15
AUDIT COMMITTEE REPORT
In
connection with the preparation and filing of the Companys Annual Report on
Form 10-K for the year ended December 31, 2009:
(1) the
Audit Committee reviewed and discussed the audited financial statements with
the Companys management;
(2) the
Audit Committee discussed with the Companys independent auditors the matters
required to be discussed by Statement of Auditing Standards No. 61, as amended
(AICPA, Professional Standards, Vol. 1, AU section 380), as adopted by the
Public Company Accounting Oversight Board, or PCAOB, in Rule 3200T;
(3) the
Audit Committee received the written disclosures and the letter from the
Companys independent accountant required by applicable requirements of the
Public Company Accounting Oversight Board regarding the independent
accountants communications with the Audit Committee concerning independence,
and discussed with the Companys independent accountants the independent
accountants independence; and
(4) based
on the review and discussions referred to above, the Audit Committee
recommended to the Board that the audited financial statements be included in
the 2009 Annual Report on Form 10-K.
|
|
|
AUDIT COMMITTEE
|
|
Bernard H.
Tenenbaum,
Chairman
|
|
Henry M.
Chidgey
|
|
Thomas E.
Zanecchia
|
PROPOSAL 2
LIMITATION OF CERTAIN LIABILITIES DIRECTORS
AND OFFICERS
In response
to a proliferation of lawsuits challenging actions taken by the management of
various corporations and a resultant tightening in the market for directors
and officers liability insurance, the New Jersey legislature amended the New
Jersey Business Corporation Act (the Business Corporation Act) in 1988 to
permit New Jersey corporations to include in their certificates of
incorporation provisions which would limit the liability of directors and
officers in certain instances. Specifically, with respect to the personal
liability of directors and officers, the Business Corporation Act was amended
to provide as follows:
The certificate of incorporation [of a New Jersey corporation] may
provide that a director or officer shall not be personally liable, or shall be
liable only to the extent therein provided, to the corporation or its
shareholders, for damages for breach of any duty owed to the corporation or its
shareholders, except that such provision shall not relieve a director or
officer from liability for any breach of duty based upon an act or omission (a)
in breach of such persons duty of loyalty to the corporation or its
shareholders, (b) not in good faith or involving a knowing violation of law or
(c) resulting in receipt by such person of an improper personal benefit.
Many New Jersey corporations acted
promptly to amend their certificates of incorporation to provide for the
limitations permitted by the New Jersey statute. In other states, including but
certainly not limited to, Delaware, similar statutes were adopted and several
corporations in those jurisdictions also acted promptly to add so-called
exculpation provisions to their certificates of incorporation.
For more than two decades, however, the
Company did not take advantage of this provision in the Business Corporation
Act. After analysis of the benefits available under the Business Corporation
Act, the Board of Directors has now determined that the Company should amend
its certificate of incorporation to permit the limitations of liability
permitted by the Business Corporation Act. This determination was based on the
following considerations:
16
|
|
|
|
|
Protection against ill-advised litigation and the maintenance of
suitable directors and officers liability insurance are required by many
persons as a condition to their serving as members of management of public
corporations. The Company will be in a better position to recruit and retain
officers and directors if their liability is limited under the Business
Corporation Act.
|
|
|
|
|
|
Adoption of an exculpation provision is expected to assist the
Company in negotiating its premiums for it directors and officers liability
insurance. It may also reduce the need for insurance companies to seek
reductions in the scope of the Companys insurance package.
|
|
|
|
|
|
The Companys obligations to indemnify its directors and officers can
result in significant exposure to the Company. The adoption of an exculpation
provision may operate to limit this exposure.
|
|
|
|
|
|
The absence of exculpation may cause those who do serve to act more
defensively and conservatively than would otherwise be in the best interests
of corporations and their shareholders.
|
The
Companys Board of Directors has determined that it would be in the best interest
of Syms Corp to offer directors and officers the protection currently allowed
by New Jersey law. Accordingly, the Board of Directors has approved, and
recommends that the shareholders adopt, an amendment (the Amendment) to the
Companys Certificate of Incorporation providing as follows:
|
|
|
|
TWELFTH: The personal liability of the Officers and Directors of the
Corporation is hereby eliminated to the fullest extent permitted by
subsection 14A:2-7(3) of the New Jersey Business Corporation Act, as the same
may be amended or supplemented. No amendment to or repeal of this Article
TWELFTH shall apply to or have any effect on the liability or alleged
liability of any Officer or Director for or with respect to any acts or
omissions of such Officer or Director occurring prior to such amendment or
repeal. If the laws of the State of New Jersey are hereafter amended to
authorize corporate action further eliminating or limiting the personal
liability of directors or officers, then the liability of an Officer or Director
of the Corporation shall be eliminated or limited to the fullest extent then
permitted. No repeal or modification of this Article TWELFTH shall adversely
affect any right of or protection afforded to an Officer or Director of the
Corporation existing immediately prior to such repeal or modification.
|
|
The primary
focus of the Amendment is upon the elimination of liability for violation of
the duty of care. The duty of care refers to the fiduciary duty of
directors and officers to manage the affairs of the corporation with the same
degree of care as would be applied to an ordinarily prudent person under
similar circumstances. While this standard theoretically seeks to be
objective, in practice this standard has led to subjective, after-the-fact,
analysis. Accordingly, to protect management against this type of analysis, the
Amendment eliminates the personal liability of directors and officers to the
Company and its shareholders for monetary damages for acts or omissions
(including negligent and grossly negligent acts or omissions) in violation of
the duty of care.
The
Amendment does not in any way eliminate or limit the liability of a director or
officer for breaching his or her duty of loyalty (
i.e.
, the duty to refrain from fraud, self-dealing and
transactions involving improper conflicts of interest) to Syms Corp or its
shareholders, failing to act in good faith, knowingly violating a law or
obtaining an improper personal benefit. The Amendment would not eliminate or
limit the liability of directors and officers arising in connection with causes
of action brought under the federal securities laws, nor would the Amendment
have any effect on the availability of equitable remedies, such as an
injunction or rescission, for breach of fiduciary duty. However, as a practical
matter, equitable remedies may not be available in particular circumstances.
The effects
of the Amendments remain uncertain to some extent. Courts could rule that
certain liabilities that the Amendment purports to eliminate remain,
notwithstanding the incorporation of the Amendment into the Companys
Certificate of Incorporation. If the courts or the New Jersey Legislature
narrow or expand the coverage of the relevant provisions of the New Jersey Business
Corporation Act, the potential liability of directors
17
and officers for their actions and the rights of shareholders to
institute litigation for breaches of fiduciary duties likewise will be affected
without further shareholder action.
Management
of Syms Corp believes that adoption of the Amendment will help the Company
attract and retain qualified individuals to serve as directors and officers and
will make directors and officers liability insurance more readily available
at a lower cost to the Company and its shareholders. The Amendment may have the
effect, however, of discouraging or deterring shareholders or management from
bringing a lawsuit against directors and officers, even though such an action,
if successful, might otherwise have benefited the Company and its shareholders.
In addition, if the Amendment is adopted, directors and officers of Syms Corp.
will not be liable for monetary damages to Syms Corp. or its shareholders for
making grossly negligent business decisions, including decisions which may be
made in connection with attempts by third parties to acquire control of Center
Bancorp. The Amendment provides that no amendment or repeal of the Amendment
and no amendment, repeal or termination of effectiveness of any law authorizing
the Amendment would apply to or have any effect on the liability of a director
or officer for any acts or omissions occurring prior to such amendment, repeal
or termination of effectiveness.
The Board
of Directors believes that the potential benefits to Syms Corp. and its
shareholders of the Amendment outweigh the limitations the Amendment places on
shareholder remedies. It is the opinion of the Board of Directors that the
legal risks and potential personal liabilities associated with lawsuits which
may be filed against the Companys directors and officers, coupled with the
resulting substantial time, expense, abuse and anxiety which might be spent and
endured in defending against such lawsuits, bears no reasonable or logical
relationship to the amount of compensation received by such persons.
Consequently, these risks pose a significant deterrent on the part of
experienced and capable individuals to serve as directors and officers of the
Company. The Amendment is not, however, being proposed in response to any
litigation, threatened litigation, resignation, threat of resignation or
refusal to serve by any existing or potential director or officer.
If approved
by the shareholders, the Amendment would become effective upon the filing with
the New Jersey Secretary of State of a Certificate of Amendment to the
Companys Certificate of Incorporation, which filing would be made shortly
after the Annual Meeting. The affirmative vote of a majority of the votes cast
at the meeting is necessary for the approval of the Amendment.
|
THE BOARD OF DIRECTORS RECOMMENDS
|
A VOTE FOR THE ADOPTION OF
|
THE AMENDMENT.
|
|
PROPOSAL 3
|
|
RATIFICATION OF APPOINTMENT OF THE
INDEPENDENT REGISTERED
|
PUBLIC ACCOUNTING FIRM
|
The Board
of Directors has selected BDO Seidman, LLP (BDO) as the independent
registered public accounting firm for the Company for the fiscal year ending
February 26, 2011 and recommends that shareholders approve such appointment.
The affirmative vote of a majority of the votes cast at the meeting is
necessary for the approval of auditors.
BDO has
audited the financial statements of the Company for more than the past five
years. A representative of BDO 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.
The
following is a summary of the fees for professional services rendered by BDO
which were billed to us for the past two fiscal years:
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Fiscal year ended
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Fee category
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February 27,
2010
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February 28,
2009
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Audit fees
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$
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629,000
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$
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383,000
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Audit-related
fees
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205,000
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46,000
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Total fees
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$
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834,000
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$
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429,000
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Audit
Fees:
Audit fees represent fees for professional
services performed by BDO for the audit of our annual financial statements,
audit of internal controls and the review of our quarterly financial
statements, as well as services that are normally provided in connection with
statutory and regulatory filings or engagements. The increase in audit fees for
the year ended February 27, 2010 reflects audit work performed for Filenes
Basement.
Audit
Related Fees:
Audit-related fees represent fees for
assurance and related services performed by BDO that are reasonably related to
the performance of the audit or review of our financial statements. These fees
were for employee benefit related services in each of the past two fiscal
years. The fees for the fiscal year ended February 27, 2010 also include
services related to the acquisition of Filenes Basement.
Pre-approval
Policies and Procedures:
The Audit Committee Charter
adopted by the Board of Directors of the Company requires that, among other
things, the Audit Committee must pre-approve all audit and permissible
non-audit services rendered by the independent registered accounting firm.
These services may include audit services, audit-related services, tax services
and other services, including services relating to compliance with Section 404
of the Sarbanes-Oxley Act of 2002. The independent registered public accounting
firm and management are required to periodically report to the Audit Committee
regarding the extent of services provided by the independent registered public
accounting firm in accordance with this pre-approval, and the fees for the
services performed to date. The Audit Committee may also pre-approve particular
services on a case-by-case basis. All services provided during the past two
fiscal years were pre-approved by the Audit Committee.
The Company
and the Audit Committee have considered whether other non-audit services by BDO
are compatible with maintaining the independence of BDO in its audit of the
Company.
For
purposes of determining whether to select BDO as the independent registered
public accounting firm to perform the audit of our financial statements and our
internal control over financial reporting for fiscal 2010, the Audit Committee
conducted a thorough review of BDOs performance. The committee considered:
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BDOs historical
and recent performance on the Companys audit, including the quality
of the engagement team and the firms experience, client service,
responsiveness and technical expertise;
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The firms leadership,
management structure, client and employee retention and compliance and ethics
programs;
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The record of the firm
against comparable accounting firms in various matters, such as regulatory,
litigation and accounting matters;
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The appropriateness of the
fees charged; and
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The firms familiarity with
the Companys accounting policies and practices and internal control over
financial reporting.
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In the
course of assisting the audit committee in its review, Company representatives
interviewed management of BDO with respect to certain of the matters listed
above. BDO was our independent auditor for the year ended February 27, 2010.
The firm is a registered public accounting firm.
Although
ratification is not required by our Bylaws or otherwise, the Board considers
the selection of the independent registered accounting firm to be an important
matter of shareholder concern and is submitting the selection of BDO Seidman,
LLP to our shareholders for ratification as a matter of good corporate
practice.
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The Board
of Directors recommends that the shareholders vote FOR ratification of the
appointment of BDO Seidman, LLP.
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.
SHAREHOLDER NOMINATIONS AND PROPOSALS
Nominations
to Board of Directors
: Any shareholder who wants to
nominate a candidate for election to the Board of Directors must deliver timely
notice to our Assistant Secretary at our principal executive offices, located
at One Syms Way, Secaucus, New Jersey 07094. In order to be timely, the notice
must be delivered
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in the case of an annual
meeting, not less than 120 days prior to the anniversary date of the
immediately preceding annual meeting of shareholders, although if we did not
hold an annual meeting during the immediately preceding calendar year or the
annual meeting is called for a date that is not within 30 days of the
anniversary date of the prior years annual meeting, the notice must be
received a reasonable time before we begin to print and mail our proxy
materials; and
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in the case of a special meeting
of shareholders called for the purpose of electing directors, the notice must
be received a reasonable time before we begin to print and mail our proxy
materials.
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Accordingly, any person who desires to nominate a candidate for
director at our fiscal 2010 annual meeting must provide the information
required not later than March 1, 2011. The shareholders notice to the
Secretary must set forth:
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As to each person whom the shareholder proposes to nominate for
election as a director (a) his or her name, age, business address and
residence address, (b) his or her principal occupation and employment, (c)
the number of shares of our common stock that are owned beneficially or of
record by him or her and (d) any other information relating to the nominee
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election
of directors pursuant to Section 14 of the Securities Exchange Act of 1934
and the rules and regulations of the SEC thereunder; and
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As to the shareholder giving
the notice: (a) the proponents name, age and record address, (b) the number
of shares of the Companys common stock which are owned beneficially or of
record by the proponent, (c) a description of all arrangements or understandings
between the shareholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by the shareholder, (d) a representation by the proponent that the
proponent is a holder of record of our common stock entitled to vote at such
meeting and that the proponent intends to appear in person or by proxy at the
meeting to nominate the person or persons named in the proponents notice and
(e) any other information relating to the shareholder that would be required
to be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant
to Section 14 of the Securities Exchange Act of 1934 and the rules and regulations
of the SEC thereunder.
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The notice
delivered by the shareholder must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve as a director if
elected. The shareholder must be a shareholder of record on the date on which
the shareholder gives the notice described above and on the record date for the
determination of shareholders entitled to vote at the meeting.
Other proposals:
In order to bring other business
before an annual meeting, a shareholder must give timely notice of such
proposal in writing to the Corporate Secretary at the Corporations principal
executive offices located at One Syms Way, Secaucus, New Jersey 07094 and such
business must otherwise be a proper matter for shareholder action. To be
timely, a shareholders notice must be delivered to such address not less than
120 days prior to the first anniversary of the preceding years annual meeting;
provided, however, that in the event that an
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annual meeting was not conducted during the immediately preceding
calendar year or in the event that the Board of Directors sets as a date for
the annual meeting a date which is not within 30 days before or after such
anniversary date, notice by the shareholder (in order to be timely) must be so
delivered within a reasonable time prior to the date on which the Corporation
begins to print its proxy solicitation materials. Such shareholders notice
must set forth a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and any
material interest in such business that such shareholder may have and the
beneficial owner, if any, on whose behalf the proposal is made. Accordingly,
any person who desires to make any other proposal at our fiscal 2010 annual
meeting must provide the information required not later than March 1, 2011.
In
accordance with SEC rules, the proxy holders named in the form of proxy
provided by the Board of Directors will be entitled to use their discretionary
voting authority with respect to any shareholder proposal raised at the 2011
annual meeting which is not presented to the Company on or before March 1, 2011
in accordance with the standards set forth above.
If a shareholder
intends to present a proposal at our 2011 annual meeting of shareholders and
desires to have that proposal included in the proxy statement and form of proxy
relating to that meeting, the proposal must be received by the Company at our
principal executive offices not later than ________ [to be inserted: 120 days
before this years mailing], 2011 and must comply with the proxy solicitation
rules of the SEC.
ANNUAL REPORT TO SHAREHOLDERS
The
Companys Annual Report on Form 10-K for the fiscal year ended February 27,
2010 (fiscal 2009), 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 Companys Annual
Report on Form 10-K filed with the SEC. Requests for this Report should be
addressed to Investor Relations, Syms Corp, One Syms Way, Secaucus, New Jersey
07094. Your cooperation in giving this matter your immediate attention and
returning your proxies will be appreciated.
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By Order of
the Board of Directors
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Raymond R. Siconolfi
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Controller,
Chief Accounting Officer,
Acting Chief Financial Officer
and Acting Secretary
May __, 2010
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21
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