-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TKXwW+yUT2+vlA8RccX0l2m7Uolp3HHlXutj/Lc9MbxLf6CkVHmrMsqK3F+EypxM VQxf93frNjB68bZNN0SQ6Q== 0000930413-06-003270.txt : 20060427 0000930413-06-003270.hdr.sgml : 20060427 20060427172923 ACCESSION NUMBER: 0000930413-06-003270 CONFORMED SUBMISSION TYPE: SC TO-I PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20060427 DATE AS OF CHANGE: 20060427 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SYMS CORP CENTRAL INDEX KEY: 0000724742 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-FAMILY CLOTHING STORES [5651] IRS NUMBER: 222465228 STATE OF INCORPORATION: NJ FISCAL YEAR END: 0301 FILING VALUES: FORM TYPE: SC TO-I SEC ACT: 1934 Act SEC FILE NUMBER: 005-39363 FILM NUMBER: 06786334 BUSINESS ADDRESS: STREET 1: SYMS WAY CITY: SECAUCUS STATE: NJ ZIP: 07094 BUSINESS PHONE: 2019029600 MAIL ADDRESS: STREET 1: SYMS WAY CITY: SECAUCUS STATE: NJ ZIP: 07094 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SYMS CORP CENTRAL INDEX KEY: 0000724742 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-FAMILY CLOTHING STORES [5651] IRS NUMBER: 222465228 STATE OF INCORPORATION: NJ FISCAL YEAR END: 0301 FILING VALUES: FORM TYPE: SC TO-I BUSINESS ADDRESS: STREET 1: SYMS WAY CITY: SECAUCUS STATE: NJ ZIP: 07094 BUSINESS PHONE: 2019029600 MAIL ADDRESS: STREET 1: SYMS WAY CITY: SECAUCUS STATE: NJ ZIP: 07094 SC TO-I 1 c42320_sctoi.txt ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 - -------------------------------------------------------------------------------- SCHEDULE TO TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 - -------------------------------------------------------------------------------- SYMS CORP. (NAME OF SUBJECT COMPANY (ISSUER)) SYMS CORP. (ISSUER) (NAME OF FILING PERSON (IDENTIFYING STATUS AS OFFEROR, ISSUER OR OTHER PERSON)) COMMON STOCK, PAR VALUE $0.05 PER SHARE (TITLE OF CLASS OF SECURITIES) 871551107 (CUSIP NUMBER OF CLASS OF SECURITIES) MARCY SYMS CHIEF EXECUTIVE OFFICER AND PRESIDENT SYMS CORP. SYMS WAY, SECAUCUS, NEW JERSEY 07094 TELEPHONE: (201) 902-9600 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF FILING PERSONS) COPY TO: ROY M. KORINS, ESQ. KATSKY KORINS LLP 605 THIRD AVENUE NEW YORK, NEW YORK 10158 TELEPHONE: (212) 953-6000 CALCULATION OF FILING FEE TRANSACTION VALUATION* AMOUNT OF FILING FEE** - ----------------------------------- ------------------------------------ $60,300,000. $6,452.10 * Calculated solely for purposes of determining the amount of the filing fee. Pursuant to rule 0-11(b)(1) of the Securities Exchange Act of 1934, as amended, the Transaction Valuation was calculated assuming that 3,350,000 outstanding shares of common stock, par value $0.05 per share, are being purchased at the maximum possible tender offer price of $18.00 per share. ** The amount of the filing fee, calculated in accordance with Rule 0-11(b)(1) of the Securities Exchange Act of 1934, as amended, equals $107.00 per million of the value of the transaction. |_| Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: N/A Filing Party: N/A Form or Registration No.: N/A Date Filed: N/A |_| Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: |_| third-party tender offer subject to Rule 14d-1. |X| issuer tender offer subject to Rule 13e-4. |_| going-private transaction subject to Rule 13e-3. |_| amendment to Schedule 13D under Rule 13d-2. Check the following box if the filing is a final amendment reporting the results of the tender offer: |_| ================================================================================ - 2 - TABLE OF CONTENTS Item 1. Summary Term Sheet 4 item 2. Subject Company Information. 4 Item 3. Identity and Background of Filing Person. 4 Item 4. Terms of the Transaction. 4 Item 5. Past Contacts, Transactions, Negotiations and Agreements. 5 Item 6. Purposes of the Transaction and Plans or Proposals. 5 Item 7. Source and Amount of Funds and Other Consideration. 5 Item 8. Interest in Securities of the Subject Company. 5 Item 9. Persons/Assets Retained, Employed, Compensated or Used. 5 Item 10. Financial Statements. 5 Item 11. Additional Information 5 item 12. Exhibits 6 item 13. Information Required by Schedule 13E-3. 6 This Tender Offer Statement on Schedule TO relates to the tender offer by Syms Corp, a New Jersey corporation ("Syms" or the "Company"), to purchase for cash up to 3,350,000 shares of its common stock, par value $0.05 per share, at a price not more than $18.00 nor less than $16.00 per share, net to the seller in cash, without interest, upon the terms and subject to the conditions set forth in the offer to purchase, dated April 27, 2006 (the "Offer to Purchase"), and the accompanying letter of transmittal (the "Letter of Transmittal"), which together, as each may be amended and supplemented from time to time, constitute the tender offer. This Schedule TO is intended to satisfy the reporting requirements of Rule 13e-4(c)(2) of the Securities Exchange Act of 1934, as amended. The information contained in the Offer to Purchase and the accompanying Letter of Transmittal, copies of which are attached to this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively, is incorporated herein by reference in response to all of the items of this Schedule TO as more particularly described below. - 3 - ITEM 1. SUMMARY TERM SHEET. The information set forth under "Summary Term Sheet" in the Offer to Purchase is incorporated herein by reference. ITEM 2. SUBJECT COMPANY INFORMATION. (a) NAME AND ADDRESS. The name of the Company is Syms Corp. The address of the Company's principal is Syms Way, Secaucus, New Jersey 07094, telephone (201) 902-9600. (b) SECURITIES. The information set forth in the Introduction to the Offer to Purchase is incorporated herein by reference. (c) TRADING MARKET AND PRICE. The information set forth in Section 8 of the Offer to Purchase ("Price Range of Shares; Dividends") is incorporated herein by reference. (d) DIVIDENDS. The information set forth in Section 8 of the Offer to Purchase ("Price Range of Shares; Dividends") is incorporated herein by reference. (e) PRIOR PUBLIC OFFERINGS. The Company did not have any underwritten public offerings of its common stock during the past three years. (f) PRIOR STOCK PURCHASES. The information set forth in Section 2 of the Offer to Purchase ("Purpose of the Tender Offer") is incorporated herein by reference. ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON. The Company is the filing person. The Company's address and telephone number are set forth in Item 2 above. The information set forth in Section 11 of the Offer to Purchase ("Interests of Directors and Executive Officers; Transactions and Arrangements Concerning Shares") is incorporated herein by reference. ITEM 4. TERMS OF THE TRANSACTION. (a) MATERIAL TERMS. The following sections of the Offer to Purchase contain information regarding the material terms of the transaction and are incorporated herein by reference: o Summary Term Sheet; o Introduction; o Section 1 ("Number of Shares; Proration"); o Section 2 ("Purpose of the Tender Offer"); o Section 3 ("Procedures for Tendering Shares"); o Section 4 ("Withdrawal Rights"); o Section 5 ("Purchase of Shares and Payment of Purchase Price"); o Section 6 ("Conditional Tender of Shares"); o Section 7 ("Conditions of the Tender Offer"); o Section 9 ("Source and Amount of Funds"); o Section 11 ("Interests of Directors and Executive Officers; Transactions and Arrangements Concerning Shares"); o Section 14 ("U.S. Federal Income Tax Consequences"); - 4 - o Section 15 ("Extension of the Tender Offer; Termination; Amendment"); o Section 16 ("Fees and Expenses") (b) PURCHASES. The information set forth in the Introduction to the Offer to Purchase and in Section 11 of the Offer to Purchase ("Interests of Directors and Executive Officers; Transactions and Arrangements Concerning Shares") is incorporated herein by reference. ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS. The information set forth in Section 11 of the Offer to Purchase ("Interests of Directors and Executive Officers; Transactions and Arrangements Concerning Shares") is incorporated herein by reference. ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS. The following sections of the Offer to Purchase, which contain information regarding the purposes of the transaction, use of securities acquired and plans, are incorporated herein by reference: o Summary Term Sheet; and o Section 2 ("Purpose of the Tender Offer"). ITEM 7. SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATION. The information set forth in Section 7 ("Conditions of the tender offer") Section 9 of the Offer to Purchase ("Source and Amount of Funds") is incorporated herein by reference. ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY. The information set forth in Section 11 of the Offer to Purchase ("Interests of Directors and Executive Officers; Transactions and Arrangements Concerning Shares") is incorporated herein by reference. ITEM 9. PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED. The information set forth in Section 16 of the Offer to Purchase ("Fees and Expenses") is incorporated herein by reference. ITEM 10. FINANCIAL STATEMENTS. The information set forth in Section 10 of the Offer to Purchase ("Certain Information Concerning Syms") is incorporated herein by reference. ITEM 11. ADDITIONAL INFORMATION (a) AGREEMENTS, REGULATORY REQUIREMENTS AND LEGAL PROCEEDINGS. The information set forth in Section 10 of the Offer to Purchase ("Certain Information Regarding Syms"), Section 11 of the Offer to Purchase ("Interests of Directors and Executive Officers; Transactions and Arrangements Concerning Shares") and Section 13 of the Offer to Purchase ("Legal Matters; Regulatory Approvals") is incorporated herein by reference. (b) OTHER MATERIAL INFORMATION. The information set forth in the Offer to Purchase and the accompanying Letter of Transmittal, copies of which are filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively, as each may be amended or supplemented from time to time, is incorporated herein by reference. ITEM 12. EXHIBITS (a)(1)(A)* Offer to Purchase, dated April 27, 2006. (a)(1)(B)* Letter of Transmittal. (a)(1)(C)* Notice of Guaranteed Delivery. - 5 - (a)(1)(D)* Letter to brokers, dealers, commercial banks, trust companies and other nominees, dated April 27, 2006. (a)(1)(E)* Letter to clients of brokers, dealers, commercial banks, trust companies and other nominees, dated April 27, 2006. (a)(1)(F)* Press Release, dated April 27, 2006 announcing commencement of the offer. (a)(1)(G)* Letter to Stockholders from the President and Chief Executive Officer of the Company, dated April 28, 2006 (b)(1) Loan Agreement, dated as of November 5, 2003, between Syms Corp and Israel Discount Bank of New York (incorporated by reference to 10-Q Report for the fiscal quarter ended November 29, 3003) (b)(2) First Amendment to Loan Agreement, dated April 7, 2005, between Syms Corp and Israel Discount Bank of New York (incorporated by reference to current report on Form 8-K dated April 8, 2005) (b)(3)* Second Amendment to Loan Agreement, dated April 20, 2006, between Syms Corp and Israel Discount Sank of New York (d)(1) Syms Corp 2005 Stock Option Plan, as amended (incorporated by reference to current report on Form 8-K dated August 5, 2005) (d)(2) Form of Nonqualified Stock Option Award Agreement for 2005 Stock Option Plan (incorporated by Reference to current report on Form 8-K dated August 5, 2005) (d)(3) Form of Incentive Option Award for 2005 Stock Option Plan (incorporated by reference to current Report on Form 8-K dated August 5, 2005) (d)(4) Form of Restricted Stock Award for 2005 Stock Option Plan (incorporated by reference to current report on Form 8-K dated August 5, 2005) - ------------------ * Filed herewith ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3. Not applicable. - 6 - SIGNATURE After due 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. SYMS CORP. By: /s/ Marcy Syms ------------------------------------ Name: Marcy Syms ------------------------------------ Dated: April 27, 2006 Title: Chief Executive Officer/President ------------------------------------ - 7 - EX-99.(A)(1)(A) 2 c42320_ex99a1a.txt OFFER TO PURCHASE FOR CASH UP TO 3,350,000 SHARES OF ITS COMMON STOCK AT A PURCHASE PRICE NOT GREATER THAN $18.00 NOR LESS THAN $16.00 PER SHARE BY SYMS CORP. - -------------------------------------------------------------------------------- THE TENDER OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FRIDAY, MAY 26, 2006, UNLESS THE COMPANY EXTENDS THE TENDER OFFER. - -------------------------------------------------------------------------------- Syms Corp., a New Jersey corporation (referred to herein as "we," "us," the "Company" or "Syms"), is offering to purchase for cash up to 3,350,000 shares of its common stock, upon the terms and subject to the conditions set forth in this document and the letter of transmittal (which together, as they may be amended and supplemented from time to time, constitute the "tender offer"). Unless the context otherwise requires, all references to shares shall refer to common stock, $0.05 par value per share, of Syms. On the terms and subject to the conditions of the tender offer, we will determine the per share price, not greater than $18.00 nor less than $16.00 per share, net to you in cash, without interest, that we will pay for shares properly tendered and not properly withdrawn in the tender offer, taking into account the total number of shares so tendered and the prices specified by the tendering stockholders. We will select the lowest purchase price that will allow us to purchase 3,350,000 shares, or such fewer number of shares as are properly tendered and not properly withdrawn, at prices not greater than $18.00 nor less than $16.00 per share. Such price is referred to as the "purchase price." The Company will purchase all shares properly tendered, but not more than 3,350,000 shares, at prices at or below the purchase price and not properly withdrawn, on the terms and subject to the conditions of the tender offer, including the odd lot, conditional tender and proration provisions. However, we reserve the right, in our sole discretion, to purchase more than 3,350,000 shares in the tender offer, subject to applicable law. We will not purchase shares tendered at prices greater than the purchase price or shares that we do not accept for purchase because of proration provisions or conditional tenders. Shares not purchased in the tender offer will be returned to the tendering stockholders at our expense as promptly as practicable after the expiration of the tender offer. See Section 1. - -------------------------------------------------------------------------------- THE TENDER OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED. THE TENDER OFFER IS, HOWEVER, SUBJECT TO OTHER CONDITIONS. SEE SECTIONS 7 AND 9. - -------------------------------------------------------------------------------- IMPORTANT If you wish to tender all or any part of your shares, you should either (1) complete and sign a letter of transmittal according to the instructions in the letter of transmittal and mail or deliver it, together with any required signature guarantee and any other required documents, including the share certificates, to American Stock Transfer & Trust Company, the depositary for the tender offer, or (2) tender the shares according to the procedure for book-entry transfer described in Section 3, or (3) request a broker, dealer, commercial bank, trust company or other nominee to effect the transaction for you. If your shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you should contact that person if you desire to tender your shares. If you desire to tender your shares and (1) your share certificates are not immediately available or cannot be delivered to the depositary, (2) you cannot comply with the procedure for book-entry transfer, or (3) you cannot deliver the other required documents to the depositary by the expiration of the tender offer, you must tender your shares according to the guaranteed delivery procedure described in Section 3. OUR BOARD OF DIRECTORS HAS APPROVED THE TENDER OFFER. HOWEVER, NEITHER WE NOR OUR BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO YOU AS TO WHETHER YOU SHOULD TENDER OR REFRAIN FROM TENDERING YOUR SHARES OR AS TO THE PRICE OR PRICES AT WHICH YOU MAY CHOOSE TO TENDER YOUR SHARES. YOU MUST MAKE YOUR OWN DECISION AS TO WHETHER TO TENDER YOUR SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND THE PRICE OR PRICES AT WHICH TO TENDER YOUR SHARES. IN SO DOING, YOU SHOULD READ CAREFULLY THE INFORMATION IN THIS OFFER TO PURCHASE AND IN THE LETTER OF TRANSMITTAL, INCLUDING OUR REASONS FOR MAKING THE TENDER OFFER. OUR DIRECTORS, INCLUDING SY SYMS AND MARCY SYMS, HAVE ADVISED US THAT THEY DO NOT INTEND TO TENDER ANY SHARES IN THE TENDER OFFER. THE SHARES ARE LISTED AND TRADED ON THE NEW YORK STOCK EXCHANGE UNDER THE TRADING SYMBOL "SYM." WE PUBLICLY ANNOUNCED THE TENDER OFFER ON THURSDAY, APRIL 27, 2006. ON APRIL 26, 2006, THE LAST TRADING DAY PRIOR TO THE DATE OF THIS OFFER TO PURCHASE, THE REPORTED CLOSING PRICE OF THE SHARES ON THE NYSE WAS $16.86 PER SHARE. WE URGE STOCKHOLDERS TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES. SEE SECTION 8. YOU MAY DIRECT QUESTIONS AND REQUESTS FOR ASSISTANCE TO D.F. KING & CO, INC., THE INFORMATION AGENT FOR THE TENDER OFFER, OR TO TM CAPITAL CORP., THE DEALER MANAGER FOR THE TENDER OFFER, AT THEIR RESPECTIVE ADDRESSES AND TELEPHONE NUMBERS SET FORTH ON THE BACK COVER PAGE OF THIS DOCUMENT. YOU MAY DIRECT REQUESTS FOR ADDITIONAL COPIES OF THIS DOCUMENT, THE LETTER OF TRANSMITTAL OR THE NOTICE OF GUARANTEED DELIVERY TO THE INFORMATION AGENT. The Dealer Manager for the Tender Offer is: [GRAPHIC OMITTED] TM Capital Corp. One Battery Park Plaza New York, NY 10004 April 27, 2006 WE HAVE NOT AUTHORIZED ANY PERSON TO MAKE ANY RECOMMENDATION ON OUR BEHALF AS TO WHETHER YOU SHOULD TENDER OR REFRAIN FROM TENDERING YOUR SHARES IN THE TENDER OFFER. WE HAVE NOT AUTHORIZED ANY PERSON TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION IN CONNECTION WITH THE TENDER OFFER OTHER THAN THOSE CONTAINED IN THIS DOCUMENT OR IN THE LETTER OF TRANSMITTAL. IF GIVEN OR MADE, YOU MUST NOT RELY UPON ANY SUCH INFORMATION OR REPRESENTATION AS HAVING BEEN AUTHORIZED BY US OR THE DEALER manager. WE ARE NOT MAKING THE TENDER OFFER TO (NOR WILL WE ACCEPT ANY TENDER OF SHARES FROM OR ON BEHALF OF) HOLDERS IN ANY JURISDICTION IN WHICH THE MAKING OF THE TENDER OFFER OR THE ACCEPTANCE OF ANY TENDER OF SHARES WOULD NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION. HOWEVER, WE MAY, AT OUR DISCRETION, TAKE SUCH ACTION AS WE MAY DEEM NECESSARY FOR US TO MAKE THE TENDER OFFER IN ANY SUCH JURISDICTION AND EXTEND THE TENDER OFFER TO HOLDERS IN SUCH JURISDICTION. IN ANY JURISDICTION THE SECURITIES OR BLUE SKY LAWS OF WHICH REQUIRE THE TENDER OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, THE TENDER OFFER IS BEING MADE ON OUR BEHALF BY THE DEALER MANAGER OR ONE OR MORE REGISTERED BROKERS OR DEALERS, WHICH ARE LICENSED UNDER THE LAWS OF SUCH JURISDICTION. TABLE OF CONTENTS
TITLE PAGE Summary Term Sheet .................................................................................. 5 Introduction ........................................................................................ 9 The Tender Offer .................................................................................... 10 1. Number of Shares, Proration ...................................................................... 10 2. Purpose of Tender Offer .......................................................................... 13 3. Procedures for Tendering Shares .................................................................. 13 4. Withdrawal Rights ................................................................................ 18 5. Purchase of Shares and Payment of Purchase Price ................................................. 19 6. Conditional Tender of Shares ..................................................................... 20 7. Conditions of the Tender Offer ................................................................... 21 8. Price Range of Shares ............................................................................ 23 9. Source and Amount of Funds ....................................................................... 23 10. Certain Information Concerning Syms ............................................................. 24 11. Interests of Directors and Executive Officers; Transactions and Arrangements Concerning Shares . 25 12. Effects of the Tender Offer on the Market for Shares; Registrations under the Exchange Act ...... 28 13. Legal Matters; Regulatory Approvals ............................................................. 28 14. U.S. Federal Income Tax Consequences ............................................................ 28 15. Extension of the Tender Offer; Termination; Amendment ........................................... 31 16. Fees and Expenses ............................................................................... 31 17. Miscellaneous ................................................................................... 32
FORWARD-LOOKING STATEMENTS This offer to purchase contains or incorporates by reference not only historical information, but also forward-looking statements (within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities and Exchange Act of 1934, as amended) and information relating to the Company that are based on the beliefs of the management of the Company as well as assumptions made by and information currently available to the management of the Company. When used in this Quarterly Report, the words "anticipate," "believe," "estimate," "expect," "intend," "plan," and similar expressions, as they relate to the Company or the management of the Company, identify forward-looking statements. Such statements reflect the current views of the Company with respect to future events, the outcome of which is subject to certain risks which may be outside the Company's control. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results or outcomes may vary materially from those described herein as anticipated, believed, estimated, expected, intended or planned. Subsequent written and oral forward-looking statements attributable to the Company or persons acting on its behalf are expressly qualified in their entirety by the cautionary statements in this paragraph and elsewhere described in this offer to purchase and other reports filed with the Securities and Exchange Commission. Forward-looking statements involve risks and uncertainties. The following are some of the factors, among others, that could cause our actual results to differ materially from what we have anticipated in our forward-looking statements: o general economic and market conditions o decreased consumer demand for the Company's products o possible disruptions in the Company's computer or telephone systems o possible work stoppages o increases in labor costs o effects of competition o possible disruptions or delays in the opening of new stores or inability to obtain suitable sites for new stores o higher than anticipated store closings or relocation costs o higher interest rates o unanticipated increases in merchandise or occupancy costs attraction and retention of qualified personnel o Other risks described in our filings with the Securities and Exchange Commission, including the Annual Report on Form 10-K for the year ended February 25, 2006. We wish to caution you not to place undue reliance on any forward-looking statement which speaks only as of the date made and to recognize that forward-looking statements are predictions of future results, which may not occur as anticipated. Actual results could differ from those anticipated in the forward-looking statements and from historical results, and the difference may be material, due to the risks and uncertainties described above, as well as others that we may consider immaterial or do not anticipate at this time. The foregoing risks and uncertainties are not exclusive and further information concerning us and our businesses, including factors that potentially could materially affect our financial results or condition, may emerge from time to time. - -------------------------------------------------------------------------------- SUMMARY TERM SHEET WE ARE PROVIDING THIS SUMMARY TERM SHEET FOR YOUR CONVENIENCE. YOU SHOULD REALIZE THAT IT DOES NOT DESCRIBE ALL OF THE DETAILS OF THE TENDER OFFER TO THE SAME EXTENT DESCRIBED IN THIS DOCUMENT. WE URGE YOU TO READ THE ENTIRE DOCUMENT AND THE LETTER OF TRANSMITTAL BECAUSE THEY CONTAIN THE FULL DETAILS OF THE TENDER OFFER. WE HAVE INCLUDED REFERENCES TO THE SECTIONS OF THIS DOCUMENT WHERE YOU WILL FIND A MORE COMPLETE DISCUSSION. - -------------------------------------------------------------------------------- WHO IS OFFERING TO PURCHASE Syms is offering to purchase your shares. MY SHARES? WHAT WILL THE PURCHASE PRICE We will determine the purchase price that we FOR THE SHARES BE? will pay per share promptly after the tender offer expires. The purchase price will be the lowest price at which, based on the number of shares tendered and the prices specified by the tendering stockholders, we can purchase 3,350,000 shares, or such fewer number of shares as are properly tendered and not properly withdrawn prior to the expiration date. This price is referred to as the "purchase price" and will not be greater than $18.00 nor less than $16.00 per share. We will pay this purchase price in cash, without interest, for all the shares we purchase under the tender offer, even if some of the shares are tendered at a price below the purchase price. See Section 1. HOW MANY SHARES WILL SYMS We will purchase 3,350,000 shares properly PURCHASE? tendered in the tender offer, or such fewer number of shares as are properly tendered, and not properly withdrawn prior to the expiration date. The 3,350,000 shares represent approximately 22% of our outstanding common stock as of April 26, 2006. We expressly reserve the right to purchase an additional number of shares not to exceed 2% of the outstanding shares, and could decide to purchase more shares, subject to applicable legal requirements. See Section 1. The tender offer is not conditioned on any minimum number of shares being tendered. See Section 7. WHAT WILL HAPPEN IF MORE THAN If more than 3,350,000 shares are tendered at 3,350,000 SHARES ARE TENDERED or below the purchase price, we will purchase AT OR BELOW THE PURCHASE all shares tendered at or below the purchase PRICE? price on a pro rata basis, except for "odd lots" (lots held by owners of less than 100 shares), which we will purchase on a priority basis as described in the immediately following paragraph and except for shares that were conditionally tendered and for which the condition was not satisfied. See Sections 5 and 6. IF I OWN FEWER THAN If you own beneficially or of record fewer than 100 SHARES AND I TENDER ALL 100 shares in the aggregate, and you properly OF MY SHARES, WILL I BE tender all of these shares at or below the SUBJECT TO PRORATION? purchase price before the tender offer expires and you complete the section entitled "Odd Lots" in the letter of transmittal, we will purchase all of your shares without subjecting them to the proration procedure. See Section 1. HOW WILL SYMS PAY FOR THE We anticipate that we will fund the purchase of SHARES? the shares tendered in the tender offer through cash on hand at the time of purchase and funds available from bank borrowings. See Section 9. HOW LONG DO I HAVE TO TENDER You may tender your shares until the tender MY SHARES? offer expires. The tender offer will expire on Friday, May 26, 2006, at 5:00 p.m., New York City time, unless we extend it. See Section 1. We may choose to extend the tender offer for any reason, subject to applicable laws. We cannot assure you that we will extend the tender offer or indicate the length of any extension that we may provide. See Section 15. If a broker, dealer, commercial bank, trust company or other nominee holds your shares, it is likely they have an earlier deadline for you to act to instruct them to accept the tender offer on your behalf. We urge you to contact the broker, dealer, commercial bank, trust company or other nominee to find out their deadline. CAN THE TENDER OFFER BE We can extend or amend the tender offer in our EXTENDED, AMENDED OR sole discretion. If we extend the tender offer, TERMINATED, AND UNDER WHAT we will delay the acceptance of any shares that CIRCUMSTANCES? have been tendered. We can terminate the tender offer under certain circumstances. See Section 7 and Section 15. HOW WILL I BE NOTIFIED IF We will issue a press release by 9:00 a.m., New SYMS EXTENDS THE TENDER OFFER York City time, on the business day after the OR AMENDS THE TERMS OF THE scheduled expiration date if we decide to TENDER OFFER? extend the tender offer. We will announce any amendment to the tender offer by making a public announcement of the amendment. See Section 15. WHAT IS THE PURPOSE OF THE We believe that the tender offer is a prudent TENDER OFFER? use of our financial resources given our business profile, assets and the current market price of the shares, and that investing in our own shares is an efficient means to provide value to our stockholders. The tender offer represents the opportunity for us to return cash to stockholders who elect to tender their shares, while at the same time increasing non-tendering stockholders' proportionate interest in Syms. See Section 2 and Section 10. ARE THERE ANY CONDITIONS TO Yes. The tender offer is subject to conditions THE TENDER OFFER? such as the absence of court and governmental action prohibiting the tender offer and of changes in general market conditions or our business that, in our judgment, are or may be materially adverse to us. See Section 7. FOLLOWING THE TENDER OFFER, Yes. Syms does not intend to cause the WILL SYMS CONTINUE AS A remaining outstanding shares of Syms common PUBLIC COMPANY? stock to be delisted from the New York Stock Exchange ("NYSE") does not intend to take any action which would result in our no longer being subject to the periodic reporting requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). See Section 12. HOW DO I TENDER MY SHARES? The tender offer will expire at 5:00 p.m., New York City time, on May 26, 2006, unless we extend the tender offer. To tender your shares prior to the expiration of the tender offer: o you must deliver your share certificate(s) and a properly completed and duly executed letter of transmittal to the depositary at the address appearing on the back cover page of this document; or o the depositary must receive a confirmation of receipt of your shares by book-entry transfer and a properly completed and duly executed letter of transmittal or an agent's message in the case of a book entry transfer; or o you must request a broker, dealer, commercial bank, trust company or other nominee to effect the transaction for you; or o you must comply with the guaranteed delivery procedure. You should contact the information agent or the dealer manager for assistance. See Section 3 and the instructions to the letter of transmittal. Please note that we will not purchase your shares in the tender offer unless the depositary receives the required documents prior to the expiration of the tender offer. If a broker, dealer, commercial bank, trust company or other nominee holds your shares, it is likely they have an earlier deadline for you to act to instruct them to accept the tender offer on your behalf. We urge you to contact your broker, dealer, commercial bank, trust company or other nominee to find out their applicable deadline. ONCE I HAVE TENDERED SHARES You may withdraw any shares you have tendered IN THE TENDER OFFER, CAN I at any time before the expiration of the tender WITHDRAW MY TENDER? offer which will occur at 5:00 p.m., New York City time, on May 26, 2006, unless we extend the tender offer. If we have not accepted the shares you have tendered to us for payment, you may also withdraw your shares after 12:00 Midnight, New York City time, on May 26, 2006. See Section 4. HOW DO I WITHDRAW SHARES I You must deliver, on a timely basis, a PREVIOUSLY TENDERED? written or facsimile notice of your withdrawal to the depositary at the address appearing on the back cover page of this document. Your notice of withdrawal must specify your name, the number of shares to be withdrawn and the name of the registered holder of these shares. Some additional requirements apply if the share certificates to be withdrawn have been delivered to the depositary or if your shares have been tendered under the procedure for book-entry transfer set forth in Section 3. See Section 4. HOW DO HOLDERS OF VESTED If you hold vested but unexercised options, you STOCK OPTIONS FOR SHARES may exercise such options in accordance with PARTICIPATE IN THE TENDER the terms of the applicable stock option plans OFFER? and tender the shares received upon such exercise in accordance with this tender offer. An option is vested to the extent that, under the terms of the option grant, you may exercise the option. The exercise of an option cannot be revoked even if any or all of the shares you received upon the exercise thereof and tendered in the offer are not purchased in the offer for any reason. See Section 3. HAS SYMS OR ITS BOARD OF Our Board of Directors has approved the tender DIRECTORS ADOPTED A POSITION offer. However, neither we nor our Board of ON THE TENDER OFFER? Directors nor any of our agents makes any recommendation no you as to whether you should tender or refrain from tendering your shares or as to the price or prices at which you may choose to tender your shares. You must make your own decision as to whether to tender your shares and, if so, how many shares to tender and the price or prices at which you should tender your shares. In so doing, you should read carefully the information in this offer to purchase and in the letter of transmittal, including our reasons for making the tender offer. Our directors and executive officers have advised us that they do not intend do tender any shares in the tender offer. See Section 11. IMPACT OF TENDER OFFER ON If we purchase 3,350,000 shares in the tender PERCENTAGE OWNED BY OUR offer, then the approximate percentage of our PRINCIPAL STOCKHOLDERS? outstanding shares owned beneficially by Sy Syms and Marcy Syms will increase from approximately 40.5% to approximately 52.2%, and from approximately 11.3% to approximately 14.6%, respectively (which assumes that neither will tender any shares in the tender offer and excludes the stock options owned by Marcy Syms). IF I DECIDE NOT TO TENDER, Stockholders who choose not to tender will own HOW WILL THE TENDER OFFER a greater percentage interest in our AFFECT MY SHARES? outstanding common stock following the consummation of the tender offer. WHAT IS THE RECENT MARKET We publicly announced the tender offer on April PRICE FOR THE SHARES? 27, 2006. On April 26, 2006, the last trading day prior to the date of this offer to purchase, the reported closing price of the shares on the NYSE was $16.86 per share. We urge you to obtain current market quotations for the shares. See Section 8. WHEN WILL SYMS PAY FOR THE We will pay the purchase price, net to you in SHARES I TENDER? cash, without interest, for the shares we purchase as promptly as practicable after the expiration of the tender offer and the acceptance of the shares for payment; provided, however, that we do not expect to announce the results of the proration and begin paying for tendered shares until at least five business days after the expiration of the tender offer. See Section 5. WILL I HAVE TO PAY BROKERAGE If you are a registered stockholder and you COMMISSIONS IF I TENDER MY tender your shares directly to the depositary, SHARES? you will not incur any brokerage commissions. If you hold shares through a broker or bank, we urge you to consult your broker or bank to determine whether transaction costs are applicable. See Section 3. WHAT ARE THE U.S. FEDERAL Generally, you will be subject to U.S. federal INCOME TAX CONSEQUENCES IF income taxation when you I receive cash from us TENDER MY SHARES? in exchange for the shares you tender. The receipt of cash for your tendered shares will be treated either as (1) a sale or exchange or (2) a distribution from us in respect of our stock. See Section 14. We recommend that you consult with your tax advisor with respect to your particular situation. WILL I HAVE TO PAY ANY STOCK If you instruct the depositary in the letter of TRANSFER TAX IF I TENDER MY transmittal to make the payment for the shares SHARES? to the registered holder, you will not incur any stock transfer tax. See Section 5. WHOM CAN I TALK TO IF I HAVE The information agent and the dealer manager QUESTIONS? can help answer your questions. The information agent is D.F. King & Co., Inc. and the dealer manager is TM Capital Corp. Their contact information is set forth on the back cover page of this document. INTRODUCTION To the Holders of our Common Stock: We invite our stockholders to tender shares of our common stock, $0.05 par value per share, for purchase by us. Upon the terms and subject to the conditions set forth in this offer to purchase and in the letter of transmittal, we are offering to purchase up to 3,350,000 shares at a price not greater than $18.00 nor less than $16.00 per share, net to the seller in cash, without interest. The tender offer will expire at 5:00 p.m., New York City time, on May 26, 2006, unless extended (such date and time, as the same may be extended, the "expiration date"). We may, in our sole discretion, extend the period of time in which the tender offer will remain open. We will select the lowest purchase price that will allow us to buy 3,350,000 or, if a lesser number of shares is properly tendered, all shares that are properly tendered and not properly withdrawn. We will acquire all shares that we purchase in the tender offer at the same purchase price regardless of whether the stockholder tendered at a lower price. However, because of the "odd lot" priority, proration and conditional tender provisions described in this offer to purchase, we may not purchase all of the shares tendered at or below the purchase price if more than the number of shares we seek are properly tendered. We will return tendered shares that we do not purchase to the tendering stockholders at our expense as promptly as practicable after the expiration of the tender offer. See Section 1. We reserve the right to purchase more than 3,350,000 shares pursuant to the tender offer, subject to certain limitations and legal requirements. See Section 1. STOCKHOLDERS MUST COMPLETE THE SECTION OF THE LETTER OF TRANSMITTAL RELATING TO THE PRICE AT WHICH THEY ARE TENDERING SHARES IN ORDER TO PROPERLY TENDER SHARES. We will pay the purchase price, net to the tendering stockholders in cash, without interest, for all shares that we purchase. Tendering stockholders whose shares are registered in their own names and who tender directly to American Stock Transfer & Trust Company, the depositary in the tender offer, will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 9 to the letter of transmittal, stock transfer taxes on the purchase of shares by us under the tender offer. If you own your shares through a bank, broker, dealer, trust company or other nominee and that person tenders your shares on your behalf, that person may charge you a fee for doing so. You should consult your bank, broker, dealer, trust company or other nominee to determine whether any charges will apply. The tender offer is not conditioned upon any minimum number of shares being tendered. The tender offer is, however, subject to certain other conditions. See Section 7. OUR BOARD OF DIRECTORS HAS APPROVED THE TENDER OFFER. HOWEVER, NEITHER WE NOR OUR BOARD OF DIRECTORS NOR THE DEALER MANAGER, INFORMATION AGENT NOR DEPOSITARY MAKES ANY RECOMMENDATION TO YOU AS TO WHETHER YOU SHOULD TENDER OR REFRAIN FROM TENDERING YOUR SHARES OR AS TO THE PRICE OR PRICES AT WHICH YOU MAY CHOOSE TO TENDER YOUR SHARES. YOU MUST MAKE YOUR OWN DECISION AS TO WHETHER TO TENDER YOUR SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND THE PRICE OR PRICES AT WHICH TO TENDER YOUR SHARES. IN SO DOING, YOU SHOULD READ CAREFULLY THE INFORMATION IN THIS OFFER TO PURCHASE AND IN THE LETTER OF TRANSMITTAL, INCLUDING OUR REASONS FOR MAKING THE TENDER OFFER. SEE SECTION 2. OUR DIRECTORS AND EXECUTIVE OFFICERS HAVE ADVISED US THAT THEY DO NOT INTEND TO TENDER ANY SHARES IN THE TENDER OFFER. If, at the expiration date, more than 3,350,000 shares are properly tendered at or below the purchase price and not properly withdrawn, we will buy shares: o first, from all holders of "odd lots" (holders of less than 100 shares) who properly tender all their shares at or below the purchase price selected by us and do not properly withdraw them before the expiration date; o second, on a pro rata basis from all other stockholders who properly tender shares at or below the purchase price selected by us, other than stockholders who tender conditionally and whose conditions are not satisfied; and o third, only if necessary to permit us to purchase 3,350,000 shares (or such greater number of shares as we may elect to purchase, subject to applicable law) from those holders who have tendered shares at or below the purchase price subject to the condition that we purchase not less the specified minimum number of the holder's shares if any of the holder's shares are purchased in the tender offer (for which the condition was not initially satisfied) by random lot, to the extent feasible. To be eligible for purchase by random lot, stockholders whose shares are conditionally tendered must have tendered all of their shares subject only to the condition described above. We may not purchase all of the shares tendered pursuant to the tender offer even if the shares are tendered at or below the purchase price. See Section 1, Section 5 and Section 6, respectively, for additional information concerning priority, proration and conditional tender procedures. Section 14 of this offer to purchase describes various United States federal income tax consequences of a sale of shares under the tender offer. Holders of vested but unexercised options to purchase shares may exercise such options for cash and tender some or all of the shares issued upon such exercise. An option is vested to the extent that it may, by the terms of the option grants, be exercised on the date the option holder proposes to exercise the option. The exercise of an option cannot be revoked even if shares received upon the exercise thereof and tendered in the offer are not purchased in the offer for any reason. As of April 26, 2006, we had issued and outstanding 14,933,587 shares. The 3,350,000 shares that we are offering to purchase represent approximately 22% of the shares then outstanding. The shares are listed and traded on the NYSE under the symbol "SYM." See Section 8. We urge stockholders to obtain current market quotations for the shares. THE TENDER OFFER 1. NUMBER OF SHARES; PRORATION. GENERAL. Upon the terms and subject to the conditions of the tender offer, Syms will purchase 3,350,000 shares, or such fewer number of shares as are properly tendered and not properly withdrawn in accordance with Section 4, before the scheduled expiration date of the tender offer, at prices not greater than $18.00 nor less than $16.00 per share, net to the seller in cash, without interest. The term "expiration date" means 5:00 p.m., New York City time, on May 26, 2006, unless and until Syms, in its sole discretion, shall have extended the period of time during which the tender offer will remain open, in which event the term "expiration date" shall refer to the latest time and date at which the tender offer, as so extended by Syms, shall expire. See Section 15 for a description of Syms's right to extend, delay, terminate or amend the tender offer. In accordance with the rules of the Securities and Exchange Commission, Syms may, and Syms expressly reserves the right to, purchase under the tender offer an additional number of shares not to exceed 2% of the outstanding shares without amending or extending the tender offer. See Section 15. In the event of an over-subscription of the tender offer as described below, shares tendered at or below the purchase price will be subject to proration, except for odd lots. The proration period and, except as described herein, withdrawal rights, expire on the expiration date. If we: o increase the price to be paid for shares above $18.00 per share or decrease the price to be paid for shares below $6.00 per share, or o increase the number of shares being sought in the tender offer and this increase in the number of shares sought exceeds 2% of the outstanding shares, or o decrease the number of shares being sought, and o the tender offer is scheduled to expire at any time earlier than the expiration of a period ending on the tenth business day from, and including, the date that we first publish, send or give notice, in the manner specified in Section 15, of any increase or decrease, then we will extend the tender offer until the expiration of ten business days from the date that we first publish notice of any increase or decrease. For the purposes of the tender offer, a "business day" means any day other than a Saturday, Sunday or U.S. federal holiday and consists of the time period from 12:01 a.m. through 12:00 Midnight, New York City time. THE TENDER OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED. THE TENDER OFFER IS, HOWEVER, SUBJECT TO OTHER CONDITIONS. SEE SECTION 7. In accordance with Instruction 5 of the letter of transmittal, stockholders desiring to tender shares must specify the price or prices, not greater than $18.00 nor less than $16.00 per share, at which they are willing to sell their shares to Syms under the tender offer. Alternatively, stockholders desiring to tender shares can choose not to specify a price and, instead, specify that they will sell their shares at the purchase price that Syms ultimately pays for shares properly tendered and not properly withdrawn in the tender offer, which could result in the tendering stockholder receiving a price per share as low as $16.00 or as high as $18.00. If tendering stockholders wish to maximize the chance that Syms will purchase their shares, they should check the box in the section of the letter of transmittal captioned "Shares Tendered at Price Determined Pursuant to the Tender Offer." Note that this election could result in the tendered shares being purchased at the minimum price of $16.00 per share. This election could also have the effect of decreasing the price at which Syms purchases tendered shares because the shares tendered using this election will be available at the minimum price of $16.00 per share. TO TENDER SHARES PROPERLY, STOCKHOLDERS MUST SPECIFY ONE AND ONLY ONE PRICE BOX IN THE APPROPRIATE SECTION IN EACH LETTER OF TRANSMITTAL. IF YOU SPECIFY MORE THAN ONE PRICE OR IF YOU FAIL TO CHECK ANY PRICE AT ALL YOU WILL NOT HAVE VALIDLY TENDERED YOUR SHARES. SEE SECTION 3. Promptly following the expiration date, Syms will, in its sole discretion, determine the purchase price that it will pay for shares properly tendered and not properly withdrawn, taking into account the number of shares tendered and the prices specified by tendering stockholders. Syms will select the lowest purchase price, not greater than $18.00 nor less than $16.00 per share, net to the seller in cash, without interest, that will enable it to purchase 3,350,000 shares, or such fewer number of shares as are properly tendered and not properly withdrawn in the tender offer. Syms will purchase all shares properly tendered at or below the purchase price (and not properly withdrawn), all at the purchase price, upon the terms and subject to the conditions of the tender offer, including the odd lot, proration and conditional tender provisions. Syms will not purchase shares tendered at prices greater than the purchase price and shares that it does not accept in the tender offer because of proration provisions or conditional tenders. Syms will return to the tendering stockholders shares that it does not purchase in the tender offer at Syms's expense as promptly as practicable after the expiration date. By following the instructions to the letter of transmittal, stockholders can specify one minimum price for a specified portion of their shares and a different minimum price for other specified shares, but stockholders must submit a separate letter of transmittal for shares tendered at each price. Stockholders also can specify the order in which Syms will purchase the specified portions in the event that, as a result of the proration provisions or otherwise, Syms purchases some but not all of the tendered shares pursuant to the tender offer. If the number of shares properly tendered at or below the purchase price and not properly withdrawn prior to the expiration date is fewer than or equal to 3,350,000 shares, or such greater number of shares as Syms may elect to purchase, subject to applicable law, Syms will, upon the terms and subject to the conditions of the tender offer, purchase all such shares. PRIORITY OF PURCHASES. Upon the terms and subject to the conditions of the tender offer, if greater than 3,350,000 shares, subject to applicable law, have been properly tendered at prices at or below the purchase price and not properly withdrawn prior to the expiration date, Syms will purchase properly tendered shares on the basis set forth below: o First, we will purchase all shares tendered by all holders of "odd lots" who: o tender all shares owned beneficially or of record at a price at or below the purchase price selected by us (partial tenders will not qualify for this preference); and o complete the section entitled "Odd Lots" in the letter of transmittal and, if applicable, in the notice of guaranteed delivery. o Second, subject to the conditional tender provisions described in Section 6, we will purchase all other shares tendered at prices at or below the purchase price selected by us on a pro rata basis with appropriate adjustments to avoid purchases of fractional shares, as described below. o Third, only if necessary to permit us to purchase 3,350,000 shares (or such greater number of shares as we may elect to purchase, subject to applicable law) shares conditionally tendered (for which the condition was not initially satisfied) at or below the purchase price selected by us, will, to the extent feasible, be selected for purchase by random lot. To be eligible for purchase by random lot, stockholders whose shares are conditionally tendered must have tendered all of their shares. Syms may not purchase all of the shares that a stockholder tenders in the tender offer even if they are tendered at prices at or below the purchase price. It is also possible that Syms will not purchase any of the shares conditionally tendered even though those shares were tendered at prices at or below the purchase price. ODD LOTS. For purposes of the tender offer, the term "odd lots" shall mean all shares properly tendered prior to the expiration date at prices at or below the purchase price and not properly withdrawn by any person, referred to as an "odd lot" holder, who owns beneficially or of record an aggregate of fewer than 100 shares and so certifies in the appropriate place on the letter of transmittal and, if applicable, on the notice of guaranteed delivery. To qualify for this preference, an odd lot holder must tender all shares owned beneficially or of record by the odd lot holder in accordance with the procedures described in Section 3. As set forth above, Syms will accept odd lots for payment before proration, if any, of the purchase of other tendered shares. This preference is not available to partial tenders or to beneficial or record holders of an aggregate of 100 or more shares, even if these holders have share certificates representing fewer than 100 shares. By accepting the tender offer, an odd lot holder who holds shares in its name and tenders its shares directly to the depositary would not only avoid the payment of brokerage commissions, but also would avoid any applicable odd lot discounts in a sale of the odd lot holder's shares on the NYSE. Any odd lot holder wishing to tender all of its shares pursuant to the tender offer should complete the section entitled "Odd Lots" in the letter of transmittal and, if applicable, in the notice of guaranteed delivery. PRORATION. If proration of tendered shares is required, Syms will determine the proration factor promptly following the expiration date. Subject to adjustment to avoid the purchase of fractional shares and subject to the provisions governing conditional tenders described in Section 6 of this offer to purchase, proration for each stockholder that tenders shares will be based on the ratio of the total number of shares that we accept for purchase (excluding "odd lots") to the total number of shares properly tendered (and not properly withdrawn) at or below the purchase price by all stockholders (other than "odd lot" holders). Because of the difficulty in determining the number of shares properly tendered, including shares tendered by guaranteed delivery procedures, as described in Section 3, and not properly withdrawn, and because of the odd lot procedure and conditional tender provisions, Syms does not expect that it will be able to announce the final proration factor or commence payment for any shares purchased under the tender offer until at least five business days after the expiration date. The preliminary results of any proration will be announced by press release as promptly as practicable after the expiration date. Stockholders may obtain preliminary proration information from the information agent or the dealer manager and may be able to obtain this information from their brokers. As described in Section 14, the number of shares that Syms will purchase from a stockholder under the tender offer may affect the U.S. federal income tax consequences to that stockholder and, therefore, may be relevant to that stockholder's decision whether or not to tender shares. We will mail this offer to purchase and the letter of transmittal to record holders of shares and we will furnish this offer to purchase to brokers, dealers, commercial banks and trust companies whose names, or the names of whose nominees, appear on Syms' stockholder list or, if applicable, that are listed as participants in a clearing agency's security position listing for subsequent transmittal to beneficial owners of shares. 2. PURPOSE OF THE TENDER OFFER. Syms believes that the tender offer is a prudent use of its financial resources given its business profile, assets and the current market price of the shares, and that investing in its own shares is an efficient means to provide value to its stockholders. The tender offer represents the opportunity for Syms to return cash to stockholders who elect to tender their shares. Where shares are tendered by the registered owner of those shares directly to the depositary, the sale of those shares in the tender offer will permit the seller to avoid the usual transaction costs associated with open market sales. Furthermore, odd lot holders who hold shares registered in their names and tender their shares directly to the depositary and whose shares are purchased under the tender offer will avoid not only the payment of brokerage commissions but also any applicable odd lot discounts that might be payable on sales of their shares in NYSE transactions. Stockholders who do not tender their shares pursuant to the tender offer and stockholders who otherwise retain an equity interest in Syms as a result of a partial tender of shares, proration or a conditional tender for which the condition is not satisfied will continue to be owners of Syms and will realize a proportionate increase in their relative equity interest in Syms and will bear the risks and rewards associated with owning the equity securities of Syms, including risks resulting from Syms's purchase of shares. See Section 10. After the completion of the tender offer, Syms expects to have sufficient cash flow and access to funding to meet its cash needs for normal operations and anticipated capital expenditures. NEITHER SYMS NOR THE SYMS BOARD OF DIRECTORS NOR ANY OF THEIR AGENTS MAKES ANY RECOMMENDATION TO ANY STOCKHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ANY SHARES OR AS TO THE PRICE OR PRICES AT WHICH STOCKHOLDERS MAY CHOOSE TO TENDER THEIR SHARES. SYMS HAS NOT AUTHORIZED ANY PERSON TO MAKE ANY RECOMMENDATION. STOCKHOLDERS SHOULD CAREFULLY EVALUATE ALL INFORMATION IN THE TENDER OFFER, SHOULD CONSULT THEIR OWN INVESTMENT AND TAX ADVISORS, AND SHOULD MAKE THEIR OWN DECISIONS ABOUT WHETHER TO TENDER SHARES, AND, IF SO, HOW MANY SHARES TO TENDER AND THE PRICE OR PRICES AT WHICH TO TENDER. OUR DIRECTORS, INCLUDING SY SYMS AND MARCY SYMS, HAVE ADVISED US THAT THEY DO NOT INTEND TO TENDER ANY SHARES IN THE TENDER OFFER. Syms continues to explore strategic arrangements, transactions and opportunities consistent with our goal of increasing stockholder value. Such strategic transactions could include acquisitions, joint ventures, corporate restructurings, a sale or otherwise. We do not currently have any plans to enter into any strategic transactions. Our decision to enter into any strategic transaction in the future will depend upon a number of factors, including, without limitation, our business and financial position, our corporate strategies, general economic and market conditions, and the market value of our business and common stock. In the event that we enter into a strategic transaction in the future and such transaction increases the market value of our common stock, however, the stockholders whose shares of common stock are purchased in this offer will not realize any of the potential value of such transaction. Additionally, we may make stock repurchases from time to time on the open market and/or in private transactions or even additional tender offers. On April 22, 2004, our Board of Directors approved the repurchase of up to 3,100,000 shares on the open market at prevailing market prices through June 7, 2006. Under this authorization, we have purchased approximately 449,000 shares of stock as set forth in the following table. AVERAGE SHARES PRICE QUARTER ENDED PURCHASED PAID PER SHARE ----------------------------------------------------------------- 2/25/2006 0 - 11/26/2005 78,500 $13.48 8/27/2005 28,900 $13.44 5/28/2005 166,000 $13.19 2/26/2005 100,200 $12.67 11/27/2004 59,400 $10.53 8/28/2004 0 - 5/29/2004 16,100 $7.83 As of April 26, 2006, we had remaining authorization to purchase approximately 2,667,000 shares. Whether or not we make additional repurchases will depend on many factors, including, without limitation, the number of shares, if any, that we purchase in this tender offer, Syms's business and financial performance and situation, the business and market conditions at the time, including the price of the shares, and such other factors as Syms may consider relevant. Any of these repurchases may be on the same terms or on terms that are more or less favorable to the selling stockholders than the terms of the tender offer. However, Rule 13e-4 of the Exchange Act prohibits Syms and its affiliates from purchasing any shares, other than pursuant to the tender offer, until at least ten business days after the expiration date of the tender offer, except pursuant to certain limited exceptions provided in Rule 14e-5 of the Exchange Act. Syms intends to retire shares that it acquires pursuant to the tender offer and will return those shares to the status of authorized but unissued stock that will be available for Syms to issue without further stockholder action (except as required by applicable law or the rules of the NYSE or any other securities exchange on which the shares may then be listed) for various purposes including, without limitation, acquisitions, raising additional capital and the satisfaction of obligations under existing or future employee benefit or compensation programs or stock plans or compensation programs for directors. See Section 9. 3. PROCEDURES FOR TENDERING SHARES. PROPER TENDER OF SHARES. For stockholders to properly tender shares under the tender offer: o the depositary must receive, at the depositary's address set forth on the back cover page of this offer to purchase, share certificates (or confirmation of receipt of such shares under the procedure for book-entry transfer set forth below), together with a properly completed and duly executed letter of transmittal, including any required signature guarantees, or an "agent's message," and any other documents required by the letter of transmittal, before the tender offer expires; or o the tendering stockholder must comply with the guaranteed delivery procedure set forth below. If a broker, dealer, commercial bank, trust company or other nominee holds your shares, it is likely they have an earlier deadline for you to act to instruct them to accept the tender offer on your behalf. We urge you to contact your broker, dealer, commercial bank, trust company or other nominee to find out their applicable deadline. IN ACCORDANCE WITH INSTRUCTION 5 OF THE LETTER OF TRANSMITTAL, STOCKHOLDERS DESIRING TO TENDER SHARES IN THE TENDER OFFER MUST PROPERLY INDICATE IN THE SECTION CAPTIONED (1) "PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED" ON THE LETTER OF TRANSMITTAL THE PRICE (IN MULTIPLES OF $0.25) AT WHICH STOCKHOLDERS ARE TENDERING SHARES OR (2) "SHARES TENDERED AT PRICE DETERMINED PURSUANT TO THE TENDER OFFER" IN THE LETTER OF TRANSMITTAL THAT THE STOCKHOLDER WILL ACCEPT THE PURCHASE PRICE DETERMINED BY SYMS IN ACCORDANCE WITH THE TERMS OF THE TENDER OFFER. If tendering stockholders wish to maximize the chance that Syms will purchase their shares, they should check the box in the section of the letter of transmittal captioned "Shares Tendered at Price Determined Pursuant to the Tender Offer." Note that this election could have the effect of decreasing the price at which Syms purchases tendered shares because shares tendered using this election will be available for purchase at the minimum price of $16.00 per share and, as a result, it is possible that this election could result in Syms purchasing tendered shares at the minimum price of $16.00 per share. A stockholder who desires to tender shares at more than one price must complete a separate letter of transmittal for each price at which such stockholder tenders shares, provided that a stockholder may not tender the same shares (unless properly withdrawn previously in accordance with Section 4) at more than one price. TO TENDER SHARES PROPERLY, STOCKHOLDERS MUST CHECK ONE AND ONLY ONE PRICE BOX IN THE APPROPRIATE SECTION OF EACH LETTER OF TRANSMITTAL. IF YOU CHECK MORE THAN ONE BOX OR IF YOU FAIL TO CHECK ANY BOX AT ALL YOU WILL NOT HAVE VALIDLY TENDERED YOUR SHARES. Odd lot holders who tender all shares must complete the section captioned "Odd Lots" in the letter of transmittal and, if applicable, in the notice of guaranteed delivery, to qualify for the preferential treatment available to odd lot holders as set forth in Section 1. WE URGE STOCKHOLDERS WHO HOLD SHARES THROUGH BROKERS OR BANKS TO CONSULT THE BROKERS OR BANKS TO DETERMINE WHETHER TRANSACTION COSTS ARE APPLICABLE IF THEY TENDER SHARES THROUGH THE BROKERS OR BANKS AND NOT DIRECTLY TO THE DEPOSITARY. SIGNATURE GUARANTEES. Except as otherwise provided below, all signatures on a letter of transmittal must be guaranteed by a financial institution (including most banks, savings and loans associations and brokerage houses) which is a participant in the Securities Transfer Agents Medallion Program. Signatures on a letter of transmittal need not be guaranteed if: o the letter of transmittal is signed by the registered holder of the shares (which term, for purposes of this Section 3, shall include any participant in The Depository Trust Company, referred to as the "book-entry transfer facility," whose name appears on a security position listing as the owner of the shares) tendered therewith and the holder has not completed either the box captioned "Special Delivery Instructions" or the box captioned "Special Payment Instructions" in the letter of transmittal; or o if shares are tendered for the account of a bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of the Securities Transfer Agents Medallion Program or a bank, broker, dealer, credit union, savings association or other entity which is an "eligible guarantor institution," as such term is defined in Rule 17Ad-15 under the Exchange Act. See Instruction 1 of the letter of transmittal. If a share certificate is registered in the name of a person other than the person executing a letter of transmittal, or if payment is to be made to a person other than the registered holder, then the certificate must be endorsed or accompanied by an appropriate stock power, in either case signed exactly as the name of the registered holder appears on the certificate, with the signature guaranteed by an eligible guarantor institution. Syms will make payment for shares tendered and accepted for payment under the tender offer only after the depositary timely receives share certificates or a timely confirmation of the book-entry transfer of the shares into the depositary's account at the book-entry transfer facility as described above, a properly completed and duly executed letter of transmittal, or an agent's message in the case of a book-entry transfer, and any other documents required by the letter of transmittal. METHOD OF DELIVERY. THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. IF YOU CHOOSE TO DELIVER REQUIRED DOCUMENTS BY MAIL, WE RECOMMEND THAT YOU USE REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED. BOOK-ENTRY DELIVERY. The depositary will establish an account with respect to the shares for purposes of the tender offer at the book-entry transfer facility within two business days after the date of this offer to purchase, and any financial institution that is a participant in the book-entry transfer facility's system may make book-entry delivery of the shares by causing the book-entry transfer facility to transfer shares into the depositary's account in accordance with the book-entry transfer facility's procedures for transfer. Although participants in the book-entry transfer facility may effect delivery of shares through a book-entry transfer into the depositary's account at the book-entry transfer facility, either: o a properly completed and duly executed letter of transmittal, including any required signature guarantees, or an agent's message, and any other required documents must, in any case, be transmitted to and received by the depositary at its address set forth on the back cover page of this offer to purchase before the expiration date; or o the guaranteed delivery procedure described below must be followed. Delivery of the letter of transmittal and any other required documents to the book-entry transfer facility does not constitute delivery to the depositary. The term "agent's message" means a message transmitted by the book-entry transfer facility to, and received by, the depositary, which states that the book-entry transfer facility has received an express acknowledgment from the participant in the book-entry transfer facility tendering the shares that the participant has received and agrees to be bound by the terms of the letter of transmittal and that Syms may enforce the agreement against the participant. COMPANY STOCK OPTION PLANS. We are not offering, as part of the offer, to purchase any of the options outstanding under the Company's stock option plans and tenders of such options will not be accepted. Holders of options who wish to participate in the offer may exercise their options and purchase shares of our common stock and then tender such shares pursuant to the offer, provided that any such exercise of an option and tender of shares is in accordance with the terms of the option plans and the options. In no event are any options to be delivered to the Depositary in connection with a tender of shares hereunder. An exercise of an option cannot be revoked even if shares received upon the exercise thereof and tendered in the offer are not purchased in the offer for any reason. FEDERAL BACKUP WITHHOLDING TAX. Under the federal income tax backup withholding rules, 28% of the gross proceeds payable to a stockholder or other payee pursuant to the tender offer must be withheld and remitted to the United States Treasury, unless (i) the stockholder or other payee provides his or her taxpayer identification number (employer identification number or social security number) to the depositary and certifies that such number is correct and that he or she is not subject to backup withholding or (2) an exemption otherwise applies under applicable regulations. Therefore, unless such an exemption exists and is proven in a manner satisfactory to the depositary, each tendering stockholder should complete and sign the Substitute Form W-9 included as part of the letter of transmittal so as to provide the information and certification necessary to avoid backup withholding. Certain stockholders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. In order for a foreign individual to qualify as an exempt recipient, that stockholder must submit a statement, signed under penalties of perjury, attesting to that individual's exempt status. Tendering stockholders can obtain such statements from the depositary. See Instruction 13 of the letter of transmittal. ANY TENDERING STOCKHOLDER OR OTHER PAYEE WHO FAILS TO COMPLETE FULLY AND SIGN THE SUBSTITUTE FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL MAY BE SUBJECT TO REQUIRED FEDERAL INCOME TAX BACKUP WITHHOLDING OF 28% OF THE GROSS PROCEEDS PAID TO SUCH STOCKHOLDER OR OTHER PAYEE PURSUANT TO THE TENDER OFFER. Gross proceeds payable pursuant to the tender offer to a foreign stockholder or his or her agent will be subject to withholding of federal income tax at a rate of 30%, unless we determine that a reduced rate of withholding is applicable pursuant to a tax treaty or that an exemption from withholding is applicable because such gross proceeds are effectively connected with the conduct of a trade or business within the United States. For this purpose, a foreign stockholder is any stockholder that is not: o a citizen or resident of the United States, o a corporation, partnership or other entity created or organized in or under the laws of the United States, or any State thereof, o a trust whose administration is subject to the primary supervision of a U.S. court and which has one or more U.S. persons who have the authority to make all substantial decisions, or o an estate the income of which is subject to United States federal income taxation regardless of its source. A foreign stockholder may be eligible to file for a refund of such tax or a portion of such tax if such stockholder meets the "complete redemption," "substantially disproportionate" or "not essentially equivalent to a dividend" tests described in Section 14 or if such stockholder is entitled to a reduced rate of withholding pursuant to a tax treaty and Syms withheld at a higher rate. In order to obtain a reduced rate of withholding under a tax treaty, a foreign stockholder must deliver to the depositary before the payment a properly completed and executed statement claiming such an exemption or reduction. Tendering stockholders can obtain such statements from the depositary. In order to claim an exemption from withholding on the grounds that gross proceeds paid pursuant to the tender offer are effectively connected with the conduct of a trade or business within the United States, a foreign stockholder must deliver to the depositary a properly executed statement claiming such exemption. Tendering stockholders can obtain such statements from the depositary. See Instruction 13 of the letter of transmittal. We urge foreign stockholders to consult their own tax advisors regarding the application of federal income tax withholding, including eligibility for a withholding tax reduction or exemption and the refund procedure. For a discussion of United States federal income tax consequences to tendering stockholders, see Section 14. GUARANTEED DELIVERY. If a stockholder desires to tender shares under the tender offer and the stockholder's share certificates are not immediately available or the stockholder cannot deliver the share certificates to the depositary before the expiration date, or the stockholder cannot complete the procedure for book-entry transfer on a timely basis, or if time will not permit all required documents to reach the depositary before the expiration date, the stockholder may nevertheless tender the shares, provided that the stockholder satisfies all of the following conditions: o the stockholder makes the tender by or through an eligible guarantor institution; o the depositary receives by hand, mail, overnight courier or facsimile transmission, before the expiration date, a properly completed and duly executed notice of guaranteed delivery in the form Syms has provided, specifying the price at which the stockholder is tendering shares, including (where required) a guarantee by an eligible guarantor institution in the form set forth in such notice of guaranteed delivery; and o the depositary receives the share certificates, in proper form for transfer, or confirmation of book-entry transfer of the shares into the depositary's account at the book-entry transfer facility, together with a properly completed and duly executed letter of transmittal, or a manually signed facsimile thereof, and including any required signature guarantees, or an agent's message, and any other documents required by the letter of transmittal, within three NYSE trading days after the date of receipt by the depositary of the notice of guaranteed delivery. RETURN OF UNPURCHASED SHARES. The depositary will return certificates for unpurchased shares as promptly as practicable after the expiration or termination of the tender offer or the proper withdrawal of the shares, as applicable, or, in the case of shares tendered by book-entry transfer at the book-entry transfer facility, the depositary will credit the shares to the appropriate account maintained by the tendering stockholder at the book-entry transfer facility, in each case without expense to the stockholder. DETERMINATION OF VALIDITY; REJECTION OF SHARES; WAIVER OF DEFECTS; NO OBLIGATION TO GIVE NOTICE OF DEFECTS. Syms will determine, in its sole discretion, all questions as to the number of shares that it will accept, the price that it will pay for shares that we accept and the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of shares, and our determination will be final and binding on all parties. Syms reserves the absolute right to reject any or all tenders of any shares that it determines are not in proper form or the acceptance for payment of or payment for which Syms determines may be unlawful. Syms also reserves the absolute right to waive any defect or irregularity in any tender with respect to any particular shares or any particular stockholder, and Syms' interpretation of the terms of the tender offer will be final and binding on all parties. The waiver of a material condition; however, would be a material amendment to the tender offer requiring dissemination of amended tender offer documents and an extension of our tender offer to ensure at least five business days remain open prior to expiration. No tender of shares will be deemed to have been properly made until the stockholder cures, or Syms waives, all defects or irregularities. None of Syms, the depositary, the information agent, the dealer manager or any other person will be under any duty to give notification of any defects or irregularities in any tender or incur any liability for failure to give this notification. TENDERING STOCKHOLDER'S REPRESENTATION AND WARRANTY; SYMS'S ACCEPTANCE CONSTITUTES AN AGREEMENT. A tender of shares under any of the procedures described above will constitute the tendering stockholder's acceptance of the terms and conditions of the tender offer, as well as the tendering stockholder's representation and warranty to Syms that: o the stockholder has a net long position in the shares or equivalent securities at least equal to the shares tendered within the meaning of Rule 14e-4 of the Exchange Act; and o the tender of shares complies with Rule 14e-4. It is a violation of Rule 14e-4 for a person, directly or indirectly, to tender shares for that person's own account unless, at the time of tender and at the end of the proration period or period during which shares are accepted by lot (including any extensions thereof), the person so tendering: o has a net long position equal to or greater than the amount tendered in: o the shares; or o securities immediately convertible into, or exchangeable or exercisable for, the shares; and o will deliver or cause to be delivered the shares in accordance with the terms of the tender offer. Rule 14e-4 provides a similar restriction applicable to the tender or guarantee of a tender on behalf of another person. Syms' acceptance for payment of shares tendered under the tender offer will constitute a binding agreement between the tendering stockholder and Syms upon the terms and conditions of the tender offer. LOST OR DESTROYED CERTIFICATES. Stockholders whose share certificate for part or all of their shares has been lost, stolen, misplaced or destroyed may contact American Stock Transfer & Trust Company, the depositary for this offer, at the address and telephone number set forth on the back cover of this offer to purchase, for instructions as to obtaining a replacement share certificate. That share certificate will then be required to be submitted together with the letter of transmittal in order to receive payment for shares that are tendered and accepted for payment. The stockholder may have to post a bond to secure against the risk that the share certificate may subsequently emerge. We urge stockholders to contact American Stock Transfer & Trust Company immediately in order to permit timely processing of this documentation. STOCKHOLDERS MUST DELIVER SHARE CERTIFICATES, TOGETHER WITH A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL, INCLUDING ANY SIGNATURE GUARANTEES, OR AN AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS TO THE DEPOSITARY AND NOT TO SYMS, THE DEALER MANAGER OR THE INFORMATION AGENT. SYMS, THE DEALER MANAGER OR THE INFORMATION AGENT WILL NOT FORWARD ANY SUCH DOCUMENTS TO THE DEPOSITARY AND DELIVERY TO SYMS, THE DEALER MANAGER OR THE INFORMATION AGENT WILL NOT CONSTITUTE A PROPER TENDER OF SHARES. 4. WITHDRAWAL RIGHTS. Stockholders may withdraw shares tendered under the tender offer at any time prior to the expiration date. Thereafter, such tenders are irrevocable, except that they may be withdrawn after 12:00 Midnight, New York City time, on May 26, 2006 unless theretofore accepted for payment as provided in this offer to purchase. For a withdrawal to be effective, the depositary must timely receive a written or facsimile transmission notice of withdrawal at the depositary's address set forth on the back cover page of this offer to purchase. Any such notice of withdrawal must specify the name of the tendering stockholder, the number of shares that the stockholder wishes to withdraw and the name of the registered holder of the shares. If the share certificates to be withdrawn have been delivered or otherwise identified to the depositary, then, before the release of the share certificates, the serial numbers shown on the share certificates must be submitted to the depositary and the signature(s) on the notice of withdrawal must be guaranteed by an eligible guarantor institution, unless the shares have been tendered for the account of an eligible guarantor institution. If a stockholder has tendered shares under the procedure for book-entry transfer set forth in Section 3, any notice of withdrawal also must specify the name and the number of the account at the book-entry transfer facility to be credited with the withdrawn shares and must otherwise comply with the book-entry transfer facility's procedures. Syms will determine all questions as to the form and validity (including the time of receipt) of any notice of withdrawal, in its sole discretion, and such determination will be final and binding. None of Syms, the depositary, the information agent, the dealer manager or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give this notification. A stockholder may not rescind a withdrawal and Syms will deem any shares that a stockholder properly withdraws not properly tendered for purposes of the tender offer, unless the stockholder properly re-tenders the withdrawn shares before the expiration date by following one of the procedures described in Section 3. If Syms extends the tender offer, is delayed in its purchase of shares or is unable to purchase shares under the tender offer for any reason, then, without prejudice to Syms' rights under the tender offer, the depositary may, subject to applicable law, retain tendered shares on behalf of Syms, and stockholders may not withdraw these shares except to the extent tendering stockholders are entitled to withdrawal rights pursuant to applicable law. 5. PURCHASE OF SHARES AND PAYMENT OF PURCHASE PRICE. Upon the terms and subject to the conditions of the tender offer, promptly following the expiration date, Syms: o will determine the purchase price it will pay for shares properly tendered and not properly withdrawn before the expiration date, taking into account the number of shares so tendered and the prices specified by tendering stockholders; and o will accept for payment and pay for, and thereby purchase, shares properly tendered at prices at or below the purchase price and not properly withdrawn prior to the expiration date, subject to the proration provisions. For purposes of the tender offer, Syms will be deemed to have accepted for payment, and therefore purchased shares, that are properly tendered at or below the purchase price and are not properly withdrawn, subject to the "odd lot," proration and conditional tender provisions of the tender offer, only when, as and if it gives oral or written notice to the depositary of its acceptance of the shares for payment under the tender offer. Upon the terms and subject to the conditions of the tender offer, promptly after the expiration date, Syms will accept for payment and pay a single per share purchase price not greater than $18.00 nor less than $16.00 per share for 13,350,000 shares, subject to increase or decrease as provided in Section 15, if properly tendered and not properly withdrawn, or such fewer number of shares as are properly tendered and not properly withdrawn. Syms will pay for shares that it purchases under the tender offer by depositing the aggregate purchase price for these shares with the depositary, which will act as agent for tendering stockholders for the purpose of receiving payment from Syms and transmitting payment to the tendering stockholders. In the event of proration, Syms will determine the proration factor and pay for those tendered shares accepted for payment as soon as practicable after the expiration date; however, Syms does not expect to be able to announce the final results of any proration and commence payment for shares purchased until at least five business days after the expiration date. Shares tendered and not purchased, including all shares tendered at prices greater than the purchase price and shares that Syms does not accept for purchase due to proration or conditional tenders, will be returned to the tendering stockholder, or, in the case of shares tendered by book-entry transfer, will be credited to the account maintained with the book-entry transfer facility by the participant therein who so delivered the shares, at Syms' expense, as promptly as practicable after the expiration date or termination of the tender offer without expense to the tendering stockholders. UNDER NO CIRCUMSTANCES WILL SYMS PAY INTEREST ON THE PURCHASE PRICE REGARDLESS OF ANY DELAY IN MAKING THE PAYMENT. If certain events occur, Syms may not be obligated to purchase shares under the tender offer. See Section 7. Syms will issue a press release announcing the price it will pay for the shares tendered in the offer promptly following the expiration date. Syms will pay all stock transfer taxes, if any, payable on the transfer to it of shares purchased under the tender offer. If, however, o payment of the purchase price is to be made to any person other than the registered holder; o certificate(s) for shares not tendered or tendered but not purchased are to be returned in the name of and to any person other than the registered holder(s) of such shares; or o if tendered certificates are registered in the name of any person other than the person signing the letter of transmittal; the amount of all stock transfer taxes, if any (whether imposed on the registered holder or the other person), payable on account of the transfer to the person will be deducted from the purchase price unless satisfactory evidence of the payment of the stock transfer taxes, or exemption therefrom, is submitted. See Instruction 10 of the letter of transmittal. ANY TENDERING STOCKHOLDER OR OTHER PAYEE WHO FAILS TO COMPLETE FULLY, SIGN AND RETURN TO THE DEPOSITARY THE SUBSTITUTE FORM W-9 INCLUDED WITH THE LETTER OF TRANSMITTAL MAY BE SUBJECT TO U.S. FEDERAL INCOME TAX BACKUP WITHHOLDING ON THE GROSS PROCEEDS PAID TO THE STOCKHOLDER OR OTHER PAYEE UNDER THE TENDER OFFER. SEE SECTION 3. 6. CONDITIONAL TENDER OF SHARES. Subject to the exception for holders of odd lots, in the event of an over-subscription of the tender offer, shares tendered at or below the purchase price prior to the expiration date will be subject to proration. See Section 1. As discussed in Section 14, the number of shares to be purchased from a particular stockholder may affect the tax treatment of the purchase to the stockholder and the stockholder's decision whether to tender. Accordingly, a stockholder may tender shares subject to the condition that Syms must purchase a specified minimum number of the stockholder's shares tendered pursuant to a letter of transmittal if Syms purchases any shares tendered by the stockholder. Any stockholder desiring to make a conditional tender must so indicate in the box entitled "Conditional Tender" in the letter of transmittal and, if applicable, in the notice of guaranteed delivery and indicate the minimum number of shares that Syms must purchase if Syms purchases any shares. We urge each stockholder to consult with his or her own financial or tax advisors. After the expiration date, if more than 3,350,000 shares (or such greater number of shares as we may elect to purchase, subject to applicable law) are properly tendered and not properly withdrawn, so that we must prorate our acceptance of and payment for tendered shares, we will calculate a preliminary proration percentage based upon all shares properly tendered, conditionally or unconditionally. If the effect of this preliminary proration would be to reduce the number of shares that we purchase from any stockholder below the minimum number specified, the shares conditionally tendered will automatically be regarded as withdrawn (except as provided in the next paragraph). All shares tendered by a stockholder subject to a conditional tender that are withdrawn as a result of proration will be returned at our expense to the tendering stockholder. After giving effect to these withdrawals, we will accept the remaining shares properly tendered, conditionally or unconditionally, on a pro rata basis, if necessary. If conditional tenders that would otherwise be regarded as withdrawn would cause the total number of shares that we purchase to fall below3,350,000 (or such greater number of shares as we may elect to purchase, subject to applicable law) then, to the extent feasible, we will select enough of the shares conditionally tendered that would otherwise have been withdrawn to permit us to purchase such number of shares. In selecting among the conditional tenders, we will select by random lot, treating all tenders by a particular taxpayer as a single lot, and will limit our purchase in each case to the designated minimum number of shares to be purchased. To be eligible for purchase by random lot, stockholders whose shares are conditionally tendered must have tendered all of his or her shares. 7. CONDITIONS OF THE TENDER OFFER. Notwithstanding any other provision of the tender offer, we will not be required to accept for payment, purchase or pay for any shares tendered, and may terminate, reduce the number of shares that we will purchase or amend the tender offer or may postpone the acceptance for payment of, or the purchase of and the payment for shares tendered, subject to Rule 13e-4(f) under the Exchange Act, if, at any time on or after April 27, 2006 and before the expiration of the offer, any of the following events shall have occurred (or shall have been reasonably determined by us to have occurred) that, in our reasonable judgment and regardless of the circumstances giving rise to the event or events, make it inadvisable to proceed with the tender offer or with acceptance for payment: othere shall have been threatened, instituted or pending any action or proceeding by any government or governmental, regulatory or administrative agency, authority or tribunal or any other person, domestic or foreign, before any court, authority, agency or tribunal that directly or indirectly: o challenges the making of the tender offer, the acquisition of some or all of the shares under the tender offer or otherwise relates in any manner to the tender offer; or o in our reasonable judgment, could materially and adversely affect the business, condition (financial or other), assets, income, operations or prospects of us or any of our subsidiaries, or otherwise materially impair in any way the contemplated future conduct of the business of us or any of our subsidiaries or materially impair the contemplated benefits of the tender offer to us; o there shall have been any action threatened, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable to the tender offer or us or any of our subsidiaries, by any court or any authority, agency or tribunal that, in our reasonable judgment, would or might, directly or indirectly: o make the acceptance for payment of, or payment for, some or all of the shares illegal or otherwise restrict or prohibit completion of the tender offer; o delay or restrict the ability of us, or render us unable, to accept for payment or pay for some or all of the shares; or o materially impair the contemplated benefits of the tender offer to us; or o materially and adversely affect the business, condition (financial or other), income, operations or prospects of us or our subsidiaries, taken as a whole, or otherwise materially impair in any way the contemplated future conduct of the business of us or any of our subsidiaries; o there shall have occurred: o any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market in the United States or the European Union; o the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States or the European Union; o a material change in United States or any other currency exchange rates or a suspension of or limitation on the markets therefor; o the commencement or escalation of a war, armed hostilities or other international or national calamity directly or indirectly involving the United States or any of its territories, including but not limited to an act of terrorism; o any limitation (whether or not mandatory) by any governmental, regulatory or administrative agency or authority on, or any event, or any disruption or adverse change in the financial or capital markets generally or the market for loan syndications in particular, that, in our reasonable judgment, might affect the extension of credit by banks or other lending institutions in the United States; o any change in the general political, market, economic or financial conditions in the United States or abroad that could, in our reasonable judgment, have a material adverse effect on the business, condition (financial or other), assets, income, operations or prospects of us or our subsidiaries, taken as a whole, or otherwise materially impair in any way the contemplated future conduct of the business of us or any of our subsidiaries; o in the case of any of the foregoing existing at the time of the commencement of the tender offer, a material acceleration or worsening thereof; or o any decline in the market price of the shares or the Dow Jones Industrial Average or the Standard and Poor's Index of 500 Industrial Companies or the New York Stock Exchange or the Nasdaq Composite Index by a material amount (including, without limitation, an amount greater than 10%) from the close of business on April 26, 2006; o a tender offer or exchange offer for any or all of the shares (other than this tender offer), or any merger, business combination or other similar transaction with or involving us or any of our subsidiaries or affiliates, shall have been proposed, announced or made by any person; o any of the following shall have occurred: o any entity, group or person who has filed a Schedule 13D or Schedule 13G with the Securities and Exchange Commission on or before the commencement of this tender offer shall have acquired or proposed to acquire beneficial ownership of an additional 2% or more of the outstanding shares; or o any person, entity or group shall have filed a Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of our or their respective assets or securities; or o any change or combination of changes shall have occurred or been threatened in the business, condition (financial or other), assets, income, operations, prospects or stock ownership of us or any of our subsidiaries, taken as a whole, that in our judgment is or may reasonably be likely to be material and adverse to us or any of our subsidiaries or that otherwise materially impairs in any way the contemplated future conduct of the business of us or any of our subsidiaries; or o any approval, permit, authorization, favorable review or consent of any governmental entity required to be obtained in connection with the tender offer shall not have been obtained on terms satisfactory to us in our reasonable judgment. The foregoing conditions are for our sole benefit and may be asserted by us regardless of the circumstances giving rise to any of these conditions, and may be waived by us, in whole or in part, at any time and from time to time, before the expiration of the offer, in our sole discretion. Our failure at any time to exercise any of the foregoing rights shall not be deemed a waiver of any of these rights, and each of these rights shall be deemed an ongoing right that may be asserted at any time and from time to time. Any determination or judgment by us concerning the events described above will be final and binding on all parties. 8. PRICE RANGE OF SHARES; DIVIDENDS The shares are listed and traded on the NYSE under the trading symbol "SYM." The following table sets forth the high and low sales prices for the shares as reported by the NYSE for each quarter within the two most recent fiscal years of the Company. HIGH LOW Quarter ended February 25, 2006 $15.47 $14.12 Quarter ended November 26, 2005 15.08 13.02 Quarter ended August 27, 2005 15.64 13.08 Quarter ended May 28, 2005 13.80 11.84 Quarter ended February 26, 2005 $13.91 $11.85 Quarter ended November 27, 2004 12.54 9.95 Quarter ended August 28, 2004 11.58 7.93 Quarter ended May 29, 2004 8.25 7.62 SHAREHOLDERS OF RECORD As of April 26, 2006, we had 14,933,587 shares outstanding and, as of April 26, 2006, we had 111 holders of record. DIVIDENDS On April 7, 2005, our Board of Directors declared a special one-time cash dividend of $1.00 per share. Our Board of Directors of the Company did not declare dividends in the fiscal year ended February 26, 2005. Payment of dividends is within the discretion of our Board of Directors and depends upon various factors including the earnings, capital requirements and financial condition of the Company and such other factors as the Board of Directors deems relevant. SALES AND PURCHASES OF SECURITIES On April 22, 2004, our Board of Directors approved the repurchase of up to 3,100,000 shares on the open market at prevailing market prices through June 7, 2006. Under this authorization, we have purchased approximately 433,000 shares of stock. During the fiscal year ended February 25, 2006, we purchased 273,000 shares at an average price of $13.30. As of April 26, 2006, we had remaining authorization to purchase approximately 2,667,000 shares. Additionally, we may make stock repurchases from time to time on the open market and/or in private transactions or even additional tender offers. Whether or not we make additional repurchases will depend on many factors, including, without limitation, the number of shares, if any, that we purchase in this tender offer, Syms' business and financial performance and situation, the business and market conditions at the time, including the price of the shares, and such other factors as Syms may consider relevant. Any of these repurchases may be on the same terms or on terms that are more or less favorable to the selling stockholders than the terms of the tender offer. Rule 13e-4 of the Exchange Act prohibits Syms and its affiliates from purchasing any shares, other than pursuant to the tender offer, until at least ten business days after the expiration date of the tender offer, except pursuant to certain limited exceptions provided in Rule 14e-5 of the Exchange Act. The Company publicly announced the tender offer on April 27, 2006. On April 26, 2006, the last trading day prior to the date of this offer to purchase, the reported closing price of the shares on the NYSE was $16.86 per share. WE URGE STOCKHOLDERS TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE shares. 9. SOURCE AND AMOUNT OF FUNDS. Assuming that 3,350,000 shares are purchased in the tender offer at a price between $16.00 and $18.00 per share, the aggregate purchase price will be between approximately $53,600,000 million and $60,300,000 million. Syms intends to purchase the shares tendered with cash on hand at the closing of the tender offer and funds available under its existing credit facility. As previously announced, Syms has entered into contracts to sell its properties in Dallas, Texas and Rochester, New York. The total estimated net proceeds from both sales is approximately $16 million. If and when one or more of such sales is consummated, and depending upon the timing, Syms anticipates using the resulting proceeds either to fund the purchase of shares in the tender offer or to repay money borrowed under its credit line which were used to purchase shares. Syms has a loan agreement, dated as of November 2, 2003, as previously amended, with Israel Discount Bank of New York which provides a line of credit not to exceed $30,000,000 through May 1, 2008. The agreement contains financial covenants, with respect to consolidated tangible net worth, as defined as working capital and maximum capital requirements, including dividends and cash repurchases of capital stock, as well as other financial ratios. On April 20, 2006, Syms entered into a Second Amendment to Loan Agreement, modifying this loan agreement. The purpose of this amendment was to modify certain financial covenants and other terms to allow Syms to borrow on a one-time basis up to $28,000,000 to be used to repurchase shares in the tender offer. Interest on individual advances is payable quarterly at the bank's base rate, except that at the time of the advance Syms has the option to select an interest rate based upon one of two other alternative calculations, with such rate to be fixed for a period not to exceed 90 days. As of April 26, 2006, there were no outstanding borrowings, and approximately $1,100,000 in outstanding letters of credit, under the loan agreement. 10. CERTAIN INFORMATION CONCERNING SYMS. We operate a chain of 37 "off-price" retail stores located throughout the United States in the Northeastern and Middle Atlantic regions and in the Midwest, Southeast and Southwest. Each of our stores offers a broad range of first quality, in-season merchandise bearing nationally recognized designer or brand-name labels for men, women and children at prices substantially lower than those generally found in department and specialty stores. We direct our merchandising efforts at predominantly middle-income, fashion-minded and price conscious customers. We are subject to the information requirements of the Exchange Act, and, in accordance therewith, we file periodic reports, proxy statements and other information relating to its business, financial condition and other matters. We are required to disclose in these proxy statements certain information, as of particular dates, concerning our directors and executive officers, their compensation, stock options granted to them, the principal holders of our securities and any material interest of such persons in transactions with us. Pursuant to Rule 13e-4(c)(2) under the Exchange Act, we have filed with the Securities and Exchange Commission an Issuer Tender Offer Statement on Schedule TO that includes additional information with respect to the tender offer. This material and other information may be inspected at the public reference facilities maintained by the Securities and Exchange Commission at 100 F Street, N.E., Washington, D.C. 20549. Copies of this material can also be obtained by mail, upon payment of the Securities and Exchange Commission's customary charges, by writing to the Public Reference Section at 100 F Street, N.E., Washington, D.C. 20549. The Securities and Exchange Commission also maintains a web site on the Internet at http://www.sec.gov that contains reports, proxy and information statements and other information regarding registrants that file electronically with the Securities and Exchange Commission. These reports, statements and other information concerning us also can be inspected at the offices of the NYSE, 20 Broad Street, New York, New York 10005. The rules of the Securities and Exchange Commission allow us to "incorporate by reference" information into this document, which means that we can disclose important information to you by referring you to another document which filed separately with the Securities and Exchange Commission. These documents contain important information about us. SEC FILINGS (FILE NO. 1-8564) PERIOD OR DATE FILED - ------------------------------------ ------------------------------------ ANNUAL REPORT ON FORM 10-K Year ended February 25, 2006 CURRENT REPORTS ON FORM 8-K March 26, 2006 We are also incorporating by reference any other all documents which we file pursuant to Section 13(a), 13(c), 14 or 15 of the Exchange Act, after the date of this offer to purchase. These documents are incorporated by reference in this offer and are a part this offer from the date we file the documents with the Securities and Exchange Commission. We incorporate by reference the documents listed above except that we do not incorporate portions of any document that is either (a) described in paragraph (i), (k) or (l) of Item 402 of Regulation S-K promulgated by the SEC or (b) furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K. We also incorporate by reference any additional documents that we may file with the Securities and Exchange Commission between the date of this offer to purchase and the expiration of the tender offer. You may request a copy of these filings, at no cost, by writing or telephoning us at our principal executive offices at the following address: Investor Relations, Syms Corp., 1706 Washington Ave., St. Louis, Missouri 63103, telephone: (314) 231-1575. Please be sure to include your complete name and address in the request. Information in the annual report on Form 10-K for the year February 25, 2006 and includes our audited consolidated balance sheet at February 25, 2006 and February 26, 2005 and the related consolidated statements of operations, shareholders' equity, and cash flows for each of the three years in the period ended February 25, 2006. At February 26, 2006, our book value per share was $14.10 per share. We intend to purchase the shares tendered with cash on hand at the closing of the tender offer and funds available under our existing credit facility. As previously announced, we have entered into contracts to sell our properties in Dallas, Texas and Rochester, New York. The total estimated net proceeds from both sales is approximately $16 million. If and when one or more of such sales is consummated, and depending upon the timing we anticipate using the resulting proceeds either to fund the purchase of shares in the tender offer or to repay money borrowed under our credit line which were used to purchase shares. As long as the debt we incur in purchasing shares in the tender offer is outstanding we will incur interest expense on the money which we borrowed and we will not receive significant interest income. As noted above, the funds we will have on hand at the closing of the offering, combined with the borrowing availability under our existing credit agreement, should be sufficient to enable us to fund the purchase of the shares in the tender offer and we do not believe that our operations will be impaired by incurring this debt. For the year ended February 25, 2006, our interest expense was approximately $181,000, our interest income was approximately $1.1 million, and we generated approximately $20.1 million from our operations. 11. INTERESTS OF DIRECTORS AND EXECUTIVE OFFICERS; TRANSACTIONS AND ARRANGEMENTS CONCERNING SHARES. As of April 26, 2006, Syms had 14,933,587 shares issued and outstanding options to purchase 738,511 shares. The 3,350,000 shares Syms is offering to purchase under the tender offer represent approximately 22% of the shares outstanding as of April 26, 2006 and approximately 21% of the shares assuming the exercise of all outstanding options. The following table sets forth a list of the Directors and Executive Officers of Syms as of April 26, 2006. The address of each person listed below is that of Syms. NAME AGE TITLE Sy Syms ..................... 80 Chairman of the Board Director of the Company Marcy Syms ................... 55 Chief Executive Officer / President and Director of the Company Antone F. Moreira ............ 69 Vice President, Chief Financial Officer, Treasurer, Assistant Secretary and Director of the Company Harvey A. Weinberg ........... 68 Director of the Company Amber Brookman ............... 64 Director of the Company Wilbur L. Ross, Jr ............ 68 Director of the Company Ronald Zindman................. 56 Executive Vice President - General Merchandise Manager Allen Brailsford............... 62 Executive Vice President - Operations Myra Butensky.................. 47 Vice President - Divisional Merchandise Manager Men's Tailored Clothing James Donato................... 50 Vice President - Operations Elyse Marks.................... 53 Vice President - MIS John Tyzbir.................... 52 Vice President - Human Resources As of April 26, 2006, Syms' directors and executive officers as a group (12 individuals) owned an aggregate of 8,458,414 shares, representing approximately 56.6% of the outstanding shares. The directors and executive officers of Syms are entitled to participate in the tender offer on the same basis as all other stockholders. Our directors, including Sy Syms and Marcy Syms, have advised us that they do not intend to tender any shares in the tender offer. As a result, the tender offer will increase the proportional holdings of our directors. If we purchase 3,350,000 shares in the tender offer, then the approximate percentage of our outstanding shares owned beneficially by Sy Syms and Marcy Syms will increase from approximately 40.5% to approximately 52.2%, and from approximately 11.3%% to approximately 14.6, respectively (which assumes that neither will tender any shares in the tender offer and excludes the stock options owned by Marcy Syms). The following table sets forth the beneficial ownership of shares of Common Stock as of April 26, 2006, by each person known by the Company to own beneficially more than 5% of the Company's outstanding Common Stock, by each Director, each of the executive officers, 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 shown as beneficially owned by such person, except as otherwise set forth in the notes to the table. AMOUNT AND NATURE OF BENEFICIAL OWNERSHIP OF COMMON STOCK AS PERCENT OF NAME AND ADDRESS OF BENEFICIAL OWNER OF CLASS ----------------- ------------------- -------------- Sy Syms ................................. 6,046,383(1) 40.5% Syms Way, Secaucus, NJ 07094 Marcy Syms .............................. 2,365,737(2)(3) 15.8% Syms Way, Secaucus, NJ 07094 Franklin Advisory Services, LLC ......... 1,430,000(4) 9.6% 777 Mariner's Island Blvd ............... San Mateo, CA 94404 Dimensional Fund Advisors, Inc. ......... 1,271,070(5) 8.5% 1299 Ocean Avenue Santa Monica, CA 90401 Barington Companies Equity Partners, L.P. 1,125,315(6) 7.5% 888 Seventh Avenue, 17th Floor New York, NY 10019 Ronald Zindman ......................... 42,764(7) * Syms Way, Secaucus, NJ 07094 Harvey A. Weinberg ...................... 200 * 2384 Augusta Way Highland Park, IL 60035 Allen Brailsford ........................ 200 * Syms Way, Secaucus, NJ 07094 Antone Moreira .......................... -- N/A Syms Way, Secaucus, NJ 07094 Wilbur L. Ross, Jr ...................... 3,000 * WL Ross & Company LLC 101 East 52nd Street New York, NY 10022 Amber M. Brookman ....................... 220 N/A Brookwood Companies, Inc. 232 Madison Avenue, 10th Floor New York, NY 10016 All directors and executive officers as a group .............................. 8,458,414 56.6% - --------------------- * Less than one percent. (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 677,570 shares issuable upon the exercise of options granted under the Option Plan and either currently exercisable or exercisable within 60 days of April 26, 2006. (3) Includes (a) 697,592 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) Franklin Advisory Services, LLC ("Franklin") has sole voting and dispositive power with respect to 1,430,000 of its shares. This information is based upon a Schedule 13G publicly filed by Franklin in February 2006. (5) Dimensional Fund Advisors, Inc. ("Dimensional") has sole voting and dispositive power with respect to 1,271,070 of its shares. This information is based upon a Schedule 13G publicly filed by Dimensional in December 2005. (6) Barington Companies Equity Partners, L.P. ("Barington") and others have sole voting and dispositive power with respect to 1,125,315 of its shares. This information is based upon a Schedule 13D/A publicly filed by Barington in March 2006. (7) Includes 40,474 shares issuable upon the exercise of options granted under the Option Plan and either currently exercisable or exercisable within 60 days of April 26, 2006. Stock option information presented herein has been adjusted to give effect to the special one-time dividend. See note (9) below. 12. EFFECTS OF THE TENDER OFFER ON THE MARKET FOR SHARES; REGISTRATION UNDER THE EXCHANGE ACT. The purchase by Syms of shares under the tender offer will reduce the number of shares that might otherwise be traded publicly and may reduce the number of Syms stockholders. These reductions may reduce the volume of trading in our shares and may result in lower stock prices and reduced liquidity in the trading of our shares following completion of the tender offer. As of April 26, 2006, we had issued and outstanding 14,933,587 shares. The 3,350,000 shares that we are offering to purchase pursuant to the tender offer represent approximately 22% of the shares outstanding as of that date. Stockholders may be able to sell non-tendered shares in the future on the NYSE or otherwise, at a net price higher or lower than the purchase price in the tender offer. We can give no assurance, however, as to the price at which a stockholder may be able to sell such shares in the future. Syms does not intend to cause the remaining outstanding shares of Syms common stock to be delisted from the New York Stock Exchange or take any action which would result in our no longer being subject to the periodic reporting requirements of the Exchange Act. The shares are "margin securities" under the rules of the Board of Governors of the Federal Reserve System. This classification has the effect, among other things, of allowing brokers to extend credit to their customers using the shares as collateral. Syms believes that, following the purchase of shares under the tender offer, the shares remaining outstanding will continue to be margin securities for purposes of the Federal Reserve Board's margin rules and regulations. The shares are registered under the Exchange Act, which requires, among other things, that Syms furnish certain information to its stockholders and the Securities and Exchange Commission and comply with the Securities and Exchange Commission's proxy rules in connection with meetings of the Syms stockholders. Syms does not intend to cause the remaining outstanding shares of Syms common stock to be delisted from the New York Stock Exchange or stop us from being subject to the periodic reporting requirements of the Securities Exchange.. 13. LEGAL MATTERS; REGULATORY APPROVALS. Except as described above, Syms is not aware of any license or regulatory permit that appears material to its business that might be adversely affected by its acquisition of shares as contemplated by the tender offer or of any approval or other action by any government or governmental, administrative or regulatory authority or agency, domestic, foreign or supranational, that would be required for the acquisition of shares by Syms as contemplated by the tender offer. Should any approval or other action be required, Syms presently contemplates that it will seek that approval or other action. Syms is unable to predict whether it will be required to delay the acceptance for payment of or payment for shares tendered under the tender offer pending the outcome of any such matter. There can be no assurance that any approval or other action, if needed, would be obtained or would be obtained without substantial cost or conditions or that the failure to obtain the approval or other action might not result in adverse consequences to its business and financial condition. The obligations of Syms under the tender offer to accept for payment and pay for shares is subject to conditions. See Section 7. 14. U.S. FEDERAL INCOME TAX CONSEQUENCES. The following describes the material United States federal income tax consequences relevant to the tender offer. This discussion is based upon the Internal Revenue Code of 1986, as amended to the date hereof (the "Code"), existing and proposed Treasury Regulations, administrative pronouncements and judicial decisions, changes to which could materially affect the tax consequences described herein and could be made on a retroactive basis. This discussion deals only with shares held as capital assets and does not deal with all tax consequences that may be relevant to all categories of holders (such as financial institutions, dealers in securities or commodities, traders in securities who elect to apply a mark-to-market method of accounting, insurance companies, tax-exempt organizations, former citizens or residents of the United States or persons who hold shares as part of a hedge, straddle, constructive sale or conversion transaction). This discussion does not address the state, local or foreign tax consequences of participating in the tender offer. Holders of shares should consult their tax advisors as to the particular consequences to them of participation in the tender offer. As used herein, a "Holder" means a beneficial holder of shares that is a citizen or resident of the United States, a corporation or a partnership created or organized in or under the laws of the United States or any State thereof, a trust whose administration is subject to the primary supervision of a U.S. court and which has one or more U.S. persons who have the authority to make all substantial decisions, or an estate the income of which is subject to United States federal income taxation regardless of its source. Holders of shares who are not United States holders ("foreign stockholders") should consult their tax advisors regarding the United States federal income tax consequences and any applicable foreign tax consequences of the tender offer and should also see Section 3 for a discussion of the applicable United States withholding rules and the potential for obtaining a refund of all or a portion of any tax withheld. WE URGE STOCKHOLDERS TO CONSULT THEIR TAX ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO THEM OF PARTICIPATING IN THE TENDER OFFER. NON-PARTICIPATION IN THE TENDER OFFER. Holders of shares who do not participate in the tender offer will not incur any tax liability as a result of the consummation of the tender offer. Sale OF SHARES PURSUANT TO THE TENDER OFFER. A sale of shares for cash pursuant to the tender offer will be a taxable transaction for United States federal income tax purposes. A Holder who participates in the tender offer will, depending on such Holder's particular circumstances, be treated either as recognizing gain or loss from the "exchange" of the shares or as receiving a "distribution" from us with respect to our stock. Under Section 302 of the Code, a Holder will recognize gain or loss on an exchange of shares for cash if the exchange o results in a "complete termination" of all such Holder's equity interest in us; o results in a "substantially disproportionate" redemption with respect to such Holder; or o is "not essentially equivalent to a dividend" with respect to such Holder. In applying the Section 302 tests, a Holder must take account of shares that such Holder constructively owns under attribution rules, pursuant to which the Holder will be treated as owning shares owned by certain family members (except that in the case of a "complete termination" a Holder may, under certain circumstances, waive attribution from family members) and related entities and shares that the Holder has the right to acquire by exercise of an option. An exchange of shares for cash will be a substantially disproportionate redemption with respect to a Holder if the percentage of the then outstanding shares owned by such Holder immediately after the exchange is (ii) less than 50% of our outstanding shares immediately after the exchange and (ii) less than 80% of the percentage of the shares owned by such Holder immediately before the exchange. If an exchange of shares for cash fails to satisfy the "substantially disproportionate" test, the Holder may nonetheless satisfy the "not essentially equivalent to a dividend" test. An exchange of shares for cash will satisfy the "not essentially equivalent to a dividend" test if it results in a "meaningful reduction" of the Holder's equity interest in us. An exchange of shares for cash that results in a relatively minor reduction of the proportionate equity interest in us of a Holder whose relative equity interest in us is minimal (an interest of less than one percent should satisfy this requirement) and who does not exercise any control over or participate in the management of our corporate affairs should be treated as "not essentially equivalent to a dividend." Holders should consult their tax advisors regarding the application of the rules of Section 302 in their particular circumstances. Holders should be aware that it is possible that an acquisition or disposition of shares by a holder substantially contemporaneously with the offer will be taken into account in determining whether any of the three tests described above is satisfied. Holders should consult their tax advisors as to any effect of such an event on the application of these tests. If a Holder is treated as recognizing gain or loss from an exchange of the shares for cash, such gain or loss will be equal to the difference between the amount of cash received and such Holder's tax basis in the shares exchanged therefor. Any such gain or loss will be capital gain or loss and will be long-term capital gain or loss if the holding period of the shares exceeds one year as of the date of the exchange. Calculation of gain or loss must be made separately for each block of shares owned by a Holder. Under the tax laws, a Holder may be able to designate which blocks and the order of such blocks to be tendered pursuant to the Tender Offer. If a Holder is not treated under the Section 302 tests as recognizing gain or loss on an exchange of shares for cash, the entire amount of cash received by such Holder pursuant to the tender offer will be treated as a dividend to the extent of the Holder's allocable portion of our current and accumulated earnings and profits and then as a return of capital to the extent of the Holder's basis in the shares tendered and thereafter as capital gain. Provided certain holding period requirements are satisfied, non-corporate Holders generally will be subject to U.S. federal income tax at a maximum rate of 15% on amounts treated as dividends. Such a dividend will be taxed at a maximum rate of 15% in its entirety, without reduction for the tax basis of the shares exchanged. To the extent that a purchase of a Holder's shares by us in the tender offer is treated as the receipt by the Holder of a dividend, the Holder's remaining adjusted basis (reduced by the amount, if any, treated as a return of capital) in the purchased shares will be added to any shares retained by the Holder, subject, in the case of corporate stockholders, to reduction of basis or possible gain recognition under the "extraordinary dividend" provisions of the Code in an amount equal to the non-taxed portion of the dividend. To the extent that cash received in the tender offer for shares is treated as a dividend to a corporate Holder, (i) it will be eligible for a dividends-received deduction (subject to applicable limitations) and (ii) it will be subject to the "extraordinary dividend" provisions of the Code. Corporate Holders should consult their tax advisors concerning the availability of the dividends-received deduction and the application of the "extraordinary dividend" provisions of the Code in their particular circumstances. We cannot predict whether or the extent to which the tender offer will be oversubscribed. If the tender offer is oversubscribed, proration of tenders pursuant to the tender offer will cause us to accept fewer shares than are tendered. Therefore, a Holder can be given no assurance that a sufficient number of such Holder's shares will be purchased pursuant to the tender offer to ensure that such purchase will be treated as an exchange, rather than as a dividend, for federal income tax purposes pursuant to the rules discussed above. However, see Section 6 regarding a Holder's right to tender shares subject to the condition that Syms must purchase a specified minimum number of such Holder's shares (if any are to be purchased). See Section 3 with respect to the application of federal income tax withholding and backup withholding. WE URGE STOCKHOLDERS TO CONSULT THEIR TAX ADVISOR TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO THEM OF THE TENDER OFFER, INCLUDING THE APPLICABILITY AND EFFECT OF STATE, LOCAL AND FOREIGN TAX LAWS. TAX CONSIDERATIONS FOR HOLDERS OF OPTIONS. A Holder of a nonqualified compensatory stock option outstanding under any of the Company's stock option plans who exercises the option in order to tender the shares that the Holder receives pursuant to the exercise (such shares being hereinafter referred to as "option shares") will be treated as receiving compensation income equal to the excess of the fair market value of each option share on the date of exercise over the exercise price for each such share. This income will be taxed to the Holder at ordinary income rates and will be subject to withholding for income and employment taxes. The Holder's tax basis for any option shares received will be the fair market value of these option shares on the date of exercise. In addition to recognizing the compensation income described above, a Holder who sells option shares pursuant to the tender offer will be treated, under the rules described above in this "Section 14. United States Federal Income Tax Consequences," as either recognizing gain or loss from an exchange of such option shares for cash or receiving a distribution from us with respect to our stock. If our purchase of option shares is treated as an exchange for tax purposes, the Holder will recognize capital gain or loss, as the case may be, equal to the difference between the proceeds received and the Holder's tax basis for the option shares exchanged. If our purchase is treated as distribution to the Holder from us, it will be treated as dividend income provided that we have sufficient current or accumulated earnings and profits. For a more complete summary of the treatment of proceeds of the tender offer, please refer to the description of the treatment of proceeds to Holders generally under this Section 14. IF A HOLDER INTENDS TO EXERCISE A STOCK OPTION IN CONNECTION WITH THE OFFER, THE HOLDER SHOULD CONSULT HIS OR HER OWN TAX ADVISOR WITH RESPECT TO THEIR PARTICULAR SITUATION. 15. EXTENSION OF THE TENDER OFFER; TERMINATION; AMENDMENT. Syms expressly reserves the right, in its sole discretion, at any time and from time to time, and regardless of whether or not any of the events set forth in Section 7 shall have occurred or shall be deemed by Syms to have occurred, to extend the period of time during which the tender offer is open and thereby delay acceptance for payment of, and payment for, any shares by giving oral or written notice of the extension to the depositary and making a public announcement of the extension. Syms also expressly reserves the right, in its sole discretion, to terminate the tender offer and not accept for payment or pay for any shares not theretofore accepted for payment or paid for or, subject to applicable law, to postpone payment for shares upon the occurrence of any of the conditions specified in Section 7 by giving oral or written notice of termination or postponement to the depositary and making a public announcement of termination or postponement. Syms' reservation of the right to delay payment for shares that it has accepted for payment is limited by Rule 13e-4(f)(5) promulgated under the Exchange Act, which requires that Syms must pay the consideration offered or return the shares tendered promptly after termination or withdrawal of a tender offer. Subject to compliance with applicable law, Syms further reserves the right, in its sole discretion, and regardless of whether any of the events set forth in Section 7 shall have occurred or shall be deemed by Syms to have occurred, to amend the tender offer in any respect, including, without limitation, by decreasing or increasing the consideration offered in the tender offer to holders of shares or by decreasing or increasing the number of shares being sought in the tender offer. Amendments to the tender offer may be made at any time and from time to time effected by public announcement, the announcement, in the case of an extension, to be issued no later than 9:00 a.m., New York City time, on the next business day after the last previously scheduled or announced expiration date. Any public announcement made under the tender offer will be disseminated promptly to stockholders in a manner reasonably designed to inform stockholders of the change. Without limiting the manner in which Syms may choose to make a public announcement, except as required by applicable law, Syms shall have no obligation to publish, advertise or otherwise communicate any public announcement other than by making a release through PR Newswire. If Syms materially changes the terms of the tender offer or the information concerning the tender offer, Syms will extend the tender offer to the extent required by Rules 13e-4(d)(2), 13e-4(e)(3) and 13e-4(f)(1) promulgated under the Exchange Act. These rules and certain related releases and interpretations of the Securities and Exchange Commission provide that the minimum period during which a tender offer must remain open following material changes in the terms of the tender offer or information concerning the tender offer (other than a change in price or a change in percentage of securities sought) will depend on the facts and circumstances, including the relative materiality of the terms or information. If Syms increases or decreases the price to be paid for shares or increases or decreases the number of shares being sought in the tender offer and, if an increase in the number of shares being sought, such increase exceeds 2% of the outstanding shares, and the tender offer is scheduled to expire at any time earlier than the expiration of a period ending on the tenth business day from, and including, the date that the notice of an increase or decrease is first published, sent or given to security holders in the manner specified in this Section 15, then, in such event the tender offer will be extended until the expiration of such ten business day period. 16. FEES AND EXPENSES. Syms has retained TM Capital Corp.to act as the dealer manager in connection with the tender offer. TM Capital Corp. will receive $100,000 plus reimbursement for certain expenses that Syms believes are reasonable and customary. Syms also has agreed to indemnify TM Capital Corp. against certain liabilities in connection with the tender offer, including liabilities under the U.S. federal securities laws. Syms has retained D.F. King & Co., Inc. to act as information agent (which will receive $7,500 plus an additional charge per call), and American Stock Transfer & Trust Company to act as depositary (which will receive $16,500), in connection with the tender offer. The information agent may contact holders of shares by mail, telephone, telegraph and in person, and may request brokers, dealers, commercial banks, trust companies and other nominee stockholders to forward materials relating to the tender offer to beneficial owners. The information agent and the depositary each will receive reasonable and customary compensation for their respective services, will be reimbursed by Syms for specified reasonable out-of-pocket expenses, and will be indemnified against certain liabilities in connection with the tender offer, including certain liabilities under the U.S. federal securities laws. No fees or commissions will be payable by Syms to brokers, dealers, commercial banks or trust companies (other than fees to the dealer manager, the information agent and the trustee for Syms' employee plans, as described above) for soliciting tenders of shares under the tender offer. We urge stockholders holding shares through brokers or banks to consult the brokers or banks to determine whether transaction costs are applicable if stockholders tender shares through such brokers or banks and not directly to the depositary. Syms, however, upon request, will reimburse brokers, dealers, commercial banks and trust companies for customary mailing and handling expenses incurred by them in forwarding the tender offer and related materials to the beneficial owners of shares held by them as a nominee or in a fiduciary capacity. No broker, dealer, commercial bank or trust company has been authorized to act as the agent of Syms, the dealer manager, the information agent, the depositary or the trustee for Syms' employee plans for purposes of the tender offer. Syms will pay or cause to be paid all stock transfer taxes, if any, on its purchase of shares, except as otherwise provided in this document and Instruction 10 in the letter of transmittal. 17. MISCELLANEOUS. Syms is not aware of any jurisdiction where the making of the tender offer is not in compliance with applicable law. If Syms becomes aware of any jurisdiction where the making of the tender offer or the acceptance of shares pursuant thereto is not in compliance with applicable law, Syms will make a good faith effort to comply with the applicable law. If, after such good faith effort, Syms cannot comply with the applicable law, Syms will not make the tender offer to (nor will tenders be accepted from or on behalf of) the holders of shares in that jurisdiction. In any jurisdiction where the securities, blue sky or other laws require the tender offer to be made by a licensed broker or dealer, the tender offer shall be deemed to be made on behalf of Syms by the dealer manager or one or more registered brokers or dealers licensed under the laws of that jurisdiction. Pursuant to Rule 13e-4(c)(2) under the Exchange Act, Syms has filed with the Commission an Issuer Tender Offer Statement on Schedule TO, which contains additional information with respect to the tender offer. The Schedule TO, including the exhibits and any amendments and supplements thereto, may be examined, and copies may be obtained, at the same places and in the same manner as is set forth in Section 10 with respect to information concerning Syms. SYMS HAS NOT AUTHORIZED ANY PERSON TO MAKE ANY RECOMMENDATION ON BEHALF OF SYMS AS TO WHETHER YOU SHOULD TENDER OR REFRAIN FROM TENDERING YOUR SHARES IN THE TENDER OFFER. SYMS HAS NOT AUTHORIZED ANY PERSON TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION IN CONNECTION WITH THE TENDER OFFER OTHER THAN THOSE CONTAINED IN THIS OFFER TO PURCHASE OR IN THE LETTER OF TRANSMITTAL. IF ANYONE MAKES ANY RECOMMENDATION OR REPRESENTATION TO YOU OR GIVES YOU ANY INFORMATION, YOU MUST NOT RELY UPON THAT RECOMMENDATION, REPRESENTATION OR INFORMATION AS HAVING BEEN AUTHORIZED BY SYMS OR THE DEALER MANAGER. April 27, 2006 The letter of transmittal and share certificates and any other required documents should be sent or delivered by each stockholder or that stockholder's broker, dealer, commercial bank, trust company or nominee to the depositary at one of its addresses set forth below. THE DEPOSITARY FOR THE TENDER OFFER IS: American Stock Transfer & Trust Company BY MAIL OR OVERNIGHT COURIER: BY HAND: American Stock Transfer & Trust Company American Stock Transfer & Trust Company Operations Center Attn: Reorganization Department Attn: Reorganization Department 59 Maiden Lane 6201 15th Avenue New York, NY 10038 Brooklyn, NY 11219
Please direct any questions or requests for assistance to the information agent or the dealer manager at their respective telephone numbers and addresses set forth below. Please direct requests for additional copies of this offer to purchase, the letter of transmittal or the notice of guaranteed delivery to the information agent at the telephone number and address set forth below. Stockholders also may contact their broker, dealer, commercial bank, trust company or nominee for assistance concerning the tender offer. Please contact the depositary to confirm delivery of shares. THE INFORMATION AGENT FOR THE OFFER IS: D. F. King & Co., Inc. 48 Wall Street 22nd Floor New York, NY 10005 Banks and Brokerage Firms, Please Call: (212) 269-5550 All Others Call Toll-free: 1-888-887-1266 THE DEALER MANAGER FOR THE OFFER IS: [GRAPHIC OMITTED] TM CAPITAL CORP. One Battery Park Plaza New York, NY 10004 EX-99.(A)(1)(B) 3 c42320_ex99-a1b.txt EXHIBIT (a)(1)(B) LETTER OF TRANSMITTAL TO TENDER SHARES OF COMMON STOCK, PAR VALUE $0.05 PER SHARE OF SYMS CORP. PURSUANT TO THE OFFER TO PURCHASE, DATED APRIL 27, 2006 - -------------------------------------------------------------------------------- THE TENDER OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME, ON FRIDAY, MAY 26, 2006, UNLESS THE COMPANY EXTENDS THE TENDER OFFER. - -------------------------------------------------------------------------------- THE DEPOSITARY FOR THE TENDER OFFER IS: AMERICAN STOCK TRANSFER & TRUST COMPANY BY MAIL OR OVERNIGHT COURIER: BY HAND: American Stock Transfer & Trust Company American Stock Transfer & Trust Company Operations Center Attn: Reorganization Department Attn: Reorganization Department 59 Maiden Lane 6201 15th Avenue New York, NY 10038 Brooklyn, NY 11219
- ------------------------------------------------------------------------------------------------------------- DESCRIPTION OF SHARES OF COMMON STOCK TENDERED - ------------------------------------------------------- ----------------------------------------------------- NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CERTIFICATE(S) TENDERED (PLEASE FILL IN, IF BLANK, EXACTLY AS (ATTACH AND SIGN ADDITIONAL LIST IF NECESSARY) NAME(S) APPEAR(S) ON CERTIFICATE(S)) - ------------------------------------------------------- ------------------------ ---------------- ----------- COMMON STOCK TOTAL NUMBER OF NUMBER OF SHARE CERTIFICATE SHARES OF SHARES OF NUMBER(S)* COMMON STOCK COMMON REPRESENTED BY STOCK SHARE TENDERED** CERTIFICATE(S)* - ------------------------------------------------------- ------------------------ ---------------- ----------- *** - ------------------------------------------------------- ------------------------ ---------------- ----------- - ------------------------------------------------------- ------------------------ ---------------- ----------- - ------------------------------------------------------- ------------------------ ---------------- ----------- - ------------------------------------------------------- ------------------------ ---------------- ----------- TOTAL SHARES TENDERED - ------------------------------------------------------- ----------------------------------------------------- * Need not complete if shares are delivered by book-entry transfer. - ------------------------------------------------------- ----------------------------------------------------- ** If you desire to tender fewer than all shares evidenced by any certificate(s) listed above, please indicate in this column the number of shares you wish to tender. Otherwise, all shares evidenced by such certificate(s) will be deemed to have been tendered. See Instruction 4. - ------------------------------------------------------- ----------------------------------------------------- *** Indicate the order (by certificate number) (1st; 2nd; 3rd; 4th; 5th; etc.) in which shares are to be purchased in event of proration (attach additional signed list if necessary). If you do not designate an order and Syms purchases less than all shares tendered due to proration, the depositary will select the shares that Syms will purchase. See Instruction 7. - ------------------------------------------------------- -----------------------------------------------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN ONE OF THOSE SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST DELIVER THIS LETTER OF TRANSMITTAL TO THE DEPOSITARY. DELIVERIES TO SYMS CORP. ("SYMS"), TM CAPITAL CORP. (THE DEALER MANAGER FOR THE TENDER OFFER) OR D.F. KING & CO., INC. (THE INFORMATION AGENT FOR THE TENDER OFFER) WILL NOT BE FORWARDED TO THE DEPOSITARY AND THEREFORE WILL NOT CONSTITUTE VALID DELIVERY TO THE DEPOSITARY. DELIVERY OF THE LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY WILL NOT CONSTITUTE DELIVERY TO THE DEPOSITARY. YOU SHOULD USE THIS LETTER OF TRANSMITTAL IF YOU ARE CAUSING THE SHARES TO BE DELIVERED BY BOOK-ENTRY TRANSFER TO THE DEPOSITARY'S ACCOUNT AT THE DEPOSITARY TRUST COMPANY ("DTC," WHICH IS HEREINAFTER REFERRED TO AS THE "BOOK-ENTRY TRANSFER FACILITY") PURSUANT TO THE PROCEDURES SET FORTH IN SECTION 3 OF THE OFFER TO PURCHASE. ONLY FINANCIAL INSTITUTIONS THAT ARE PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY'S SYSTEM MAY MAKE BOOK-ENTRY DELIVERY OF THE SHARES. THE INFORMATION AGENT FOR THE TENDER OFFER IS: D. F. KING & CO., INC. 48 Wall Street 22nd Floor New York, NY 10005 Banks and Brokerage Firms, Please Call: (212) 269-5550 All Others Call Toll-free: (888) 877-1266 BEFORE COMPLETING THIS LETTER OF TRANSMITTAL, YOU SHOULD READ THIS LETTER OF TRANSMITTAL AND THE ACCOMPANYING INSTRUCTIONS CAREFULLY. You should use this letter of transmittal only if (1) you are also enclosing certificates for the shares you desire to tender, or (2) you intend to deliver certificates for such shares under a notice of guaranteed delivery previously sent to the depositary, or (3) you are delivering shares through a book-entry transfer into the depositary's account at Depository Trust Company (i.e., the book-entry transfer facility) in accordance with Section 3 of the offer to purchase. If you desire to tender shares in the tender offer, but you cannot deliver the certificates for your shares and all other required documents to the depositary by the expiration date (as set forth in the offer to purchase), or cannot comply with the procedures for book-entry transfer on a timely basis, then you may tender your shares according to the guaranteed delivery procedures set forth in Section 3 of the offer to purchase. See Instruction 2. Delivery of the letter of transmittal and any other required documents to the book-entry transfer facility does not constitute delivery to the depositary. |_|CHECK HERE IF YOU ARE DELIVERING TENDERED SHARES PURSUANT TO A NOTICE OF GUARANTEED DELIVERY THAT YOU PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING: Name(s) of Tendering Stockholder(s): ___________________________________________ Date of Execution of notice of guaranteed delivery: ____________________________ Name of Institution that Guaranteed Delivery: __________________________________ |_| CHECK HERE IF ANY CERTIFICATES EVIDENCING THE SHARES YOU ARE TENDERING WITH THIS LETTER OF TRANSMITTAL HAVE BEEN LOST, STOLEN, DESTROYED OR MUTILATED. IF YOU CHECK THIS BOX, YOU MUST COMPLETE AN AFFIDAVIT OF LOSS AND RETURN IT WITH YOUR LETTER OF TRANSMITTAL. YOU SHOULD CALL AMERICAN STOCK TRANSFER & TRUST COMPANY, THE DEPOSITARY FOR THIS OFFER, AT 877-248-6417 TO GET INFORMATION ABOUT THE REQUIREMENTS FOR REPLACEMENT. YOU MAY BE REQUIRED TO POST A BOND TO SECURE AGAINST THE RISK THAT CERTIFICATES MAY BE SUBSEQUENTLY RECIRCULATED. PLEASE CALL 877-248-6417 IMMEDIATELY TO OBTAIN AN AFFIDAVIT OF LOSS AND TO RECEIVE FURTHER INSTRUCTIONS ON HOW TO PROCEED, SO THAT THE TIMELY PROCESSING OF THIS LETTER OF TRANSMITTAL WILL NOT BE IMPEDED. SEE INSTRUCTION 9. 2 |_| CHECK HERE IF YOU ARE A FINANCIAL INSTITUTION THAT IS A PARTICIPATING INSTITUTION IN THE BOOK-ENTRY TRANSFER FACILITY'S SYSTEM AND YOU ARE DELIVERING THE TENDERED SHARES BY BOOK-ENTRY TRANSFER TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY AT THE BOOK-ENTRY TRANSFER FACILITY, AND COMPLETE THE FOLLOWING: Name(s) of Tendering Institution: ______________________________________________ Account Number: ________________________________________________________________ Transaction Code Number: _______________________________________________________ NOTE: SIGNATURES MUST BE PROVIDED BELOW PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY CHECK ONLY ONE BOX. IF YOU CHECK MORE THAN ONE BOX, OR IF YOU DO NOT CHECK ANY BOX, YOU WILL HAVE FAILED TO VALIDLY TENDER ANY SHARES. SHARES TENDERED AT PRICE DETERMINED PURSUANT TO THE TENDER OFFER (SEE INSTRUCTION 5) |_| The undersigned wants to maximize the chance of having Syms purchase all shares the undersigned is tendering (subject to the possibility of proration). Accordingly, by checking this ONE box INSTEAD OF ONE OF THE PRICE BOXES BELOW, the undersigned hereby tenders shares and is willing to accept the purchase price determined by Syms pursuant to the tender offer (the "Purchase Price"). This action could result in receiving a price per share as low as $16.00. -- OR -- SHARES TENDERED AT PRICE DETERMINED BY STOCKHOLDER (SEE INSTRUCTION 5) By checking ONE of the boxes below INSTEAD OF THE BOX ABOVE, the undersigned hereby tenders shares at the price checked. This action could result in none of the shares being purchased if the Purchase Price is less than the price checked below. A STOCKHOLDER WHO DESIRES TO TENDER SHARES AT MORE THAN ONE PRICE MUST COMPLETE A SEPARATE LETTER OF TRANSMITTAL FOR EACH PRICE AT WHICH THE STOCKHOLDER TENDERS SHARES. You cannot tender the same shares at more than one price, unless you have previously validly withdrawn those shares tendered at a different price in accordance with Section 4 of the offer to purchase. PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED |_| $16.25 |_| $16.50 |_| $16.75 |_| $17.00 |_| $17.25 |_| $17.50 |_| $17.75 |_| $18.00 YOU WILL NOT HAVE VALIDLY TENDERED YOUR SHARES UNLESS YOU CHECK ONE AND ONLY ONE BOX IN THIS FRAME. 3 - -------------------------------------------------------------------------------- ODD LOTS (SEE INSTRUCTION 6) To be completed ONLY if shares are being tendered by or on behalf of a person owning, beneficially or of record, an aggregate of fewer than 100 shares. On the date hereof, the undersigned either (check one box): - --- --- |_| is the beneficial or record owner of an aggregate of fewer than 100 shares and is tendering all of those shares; or |_| is a broker, dealer, commercial bank, trust company or other nominee that (i) is tendering, for the beneficial owner(s) thereof, shares with respect to which it is the record holder, and (ii) believes, based upon representations made to it by such beneficial owner(s), that each such person was the beneficial owner of an aggregate of fewer than 100 shares and is tendering all of such shares. - -------------------------------------------------------------------------------- IN ADDITION, THE UNDERSIGNED IS TENDERING SHARES (CHECK ONE BOX): - --- --- |_| at the Purchase Price, which will be determined by Syms in accordance with the terms of the tender offer (persons checking this box should check the box under the heading "Shares Tendered at Price Determined Pursuant to the Tender Offer"); or |_|at the price per share indicated under the heading "Shares Tendered at Price Determined by Stockholder." - -------------------------------------------------------------------------------- CONDITIONAL TENDER (SEE INSTRUCTION 12) A tendering stockholder may condition his or her tender of shares upon Syms purchasing a specified minimum number of the shares tendered, as described in Section 6 of the offer to purchase. Unless Syms purchases at least the minimum number of shares you indicate below pursuant to the terms of the tender offer, Syms will not purchase any of the shares tendered below. It is the tendering stockholder's responsibility to calculate that minimum number, and we urge each stockholder to consult his or her own tax advisor in doing so. Unless you check the box immediately below and specify, in the space provided, a minimum number of shares that Syms must purchase from you if Syms purchases any shares from you, Syms will deem your tender unconditional. - --- --- |_| The minimum number of shares that Syms must purchase from me if Syms purchases any shares from me is: shares. - -------------------------------------------------------------------------------- If, because of proration, Syms will not purchase the minimum number of shares from you that you designate, Syms may accept conditional tenders by random lot, if necessary. However, to be eligible for purchase by random lot, the tendering stockholder must have tendered all of his or her shares. To certify that you are tendering all of the shares you own, check the box below. - --- --- |_| The tendered shares represent all shares held by the undersigned. 4 - -------------------------------------------------------------------------------- IN ADDITION, THE UNDERSIGNED IS TENDERING SHARES (CHECK ONE BOX): - --- --- |_| at the Purchase Price, which will be determined by Syms in accordance with the terms of the tender offer (persons checking this box should check the box under the heading "Shares Tendered at Price Determined Pursuant to the Tender Offer"); or |_| at the price per share indicated under the heading "Shares Tendered at Price Determined by Stockholder." SPECIAL PAYMENT INSTRUCTIONS (SEE INSTRUCTIONS 1, 10 AND 11) Complete this box ONLY if the check for the aggregate Purchase Price of shares purchased (less the amount of any federal income or backup withholding tax required to be withheld) and/or certificate for shares not tendered or not purchased are to be issued in the name of someone other than the undersigned, or if shares tendered hereby and delivered by book-entry transfer which are not purchased are to be returned by crediting them to an account at the book-entry transfer facility other than the account designated above. ISSUE TO: Name: -------------------------------------------------------------------------- (PLEASE PRINT) Address: ----------------------------------------------------------------------- (INCLUDE ZIP CODE) Taxpayer Identification or Social Security Number: ------------------------------ CHECK and COMPLETE IF APPLICABLE: |_| CREDIT SHARES DELIVERED BY BOOK-ENTRY TRANSFER AND NOT PURCHASED TO THE ACCOUNT SET FORTH BELOW: Account Number: ---------------------------------------------------------------- SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1 AND 11) Complete this box ONLY if the check for the aggregate Purchase Price of shares purchased (less the amount of any federal income or backup withholding tax required to be withheld) and/or certificate for shares not tendered or not purchased are to be mailed to someone other than the undersigned or to the undersigned at an address other than that shown below the undersigned's signature(s). DELIVER TO: Name: -------------------------------------------------------------------------- (PLEASE PRINT) Address: ----------------------------------------------------------------------- (INCLUDE ZIP CODE) 5 Ladies and Gentlemen: The undersigned hereby tenders to Syms Corp., a New Jersey corporation ("Syms"), the above-described shares of Syms's common stock, par value $0.05 per share (the "shares"). The tender of the shares is being made at the price per share indicated in this letter of transmittal, net to the seller in cash, without interest, on the terms and subject to the conditions set forth in this letter of transmittal and in Syms's offer to purchase, dated April 27, 2006, receipt of which is hereby acknowledged. Subject to and effective upon acceptance for payment of, and payment for, shares tendered with this letter of transmittal in accordance with the terms of the tender offer, the undersigned hereby (1) sells, assigns and transfers to or upon the order of Syms all right, title and interest in and to all of the shares tendered hereby which are so accepted and paid for; (2) orders the registration of any shares tendered by book-entry transfer that are purchased under the tender offer to or upon the order of Syms; and (3) appoints the depositary as attorney-in-fact of the undersigned with respect to such shares, with the full knowledge that the depositary also acts as the agent of Syms, with full power of substitution (such power of attorney being an irrevocable power coupled with an interest), to perform the following functions: (a) deliver certificates for shares, or transfer ownership of such shares on the account books maintained by the book-entry transfer facility, together in either such case with all accompanying evidences of transfer and authenticity, to or upon the order of Syms, upon receipt by the depositary, as the undersigned's agent, of the Purchase Price with respect to such shares; (b) present certificates for such shares for cancellation and transfer on Syms's books; and (c) receive all benefits and otherwise exercise all rights of beneficial ownership of such shares, subject to the next paragraph, all in accordance with the terms of the tender offer. The undersigned understands that Syms will, upon the terms and subject to the conditions of the tender offer, determine a single per share price, not greater than $18.00 nor less than $16.00 per share (the "Purchase Price"), which it will pay for shares validly tendered and not validly withdrawn pursuant to the tender offer, after taking into account the number of shares so tendered and the prices specified by tendering stockholders. The undersigned understands that Syms will select the lowest purchase price that will allow it to purchase 3,400,000 shares or, if a lesser number of shares is validly tendered and not validly withdrawn, all such shares that are validly tendered and not validly withdrawn. The undersigned further understands that Syms reserves the right to purchase more than 3,400,000 shares pursuant to the tender offer, subject to certain limitations and legal requirements as set forth in the tender offer. Syms will purchase all shares validly tendered at or below the Purchase Price and not validly withdrawn, subject to the conditions of the tender offer and the "odd lot" priority, proration and conditional tender provisions described in the offer to purchase. The undersigned understands that all stockholders whose shares are purchased by Syms will receive the same Purchase Price for each share purchased in the tender offer. The undersigned hereby covenants, represents and warrants to Syms that: (a) the undersigned has a net long position in the shares at least equal to the number of shares being tendered within the meaning of Rule 14e-4 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and is tendering the shares in compliance with Rule 14e-4 under the Exchange Act; (b) has full power and authority to tender, sell, assign and transfer the shares tendered hereby; (c) when and to the extent Syms accepts the shares for purchase, Syms will acquire good and marketable title to them, free and clear of all security interests, liens, restrictions, claims, charges, encumbrances, conditional sales agreements or other obligations relating to their sale or transfer, and the shares will not be subject to any adverse claims or rights; (d) the undersigned will, upon request, execute and deliver any additional documents deemed by 6 the depositary or Syms to be necessary or desirable to complete the sale, assignment and transfer of the shares tendered hereby and accepted for purchase; and (e) the undersigned has read and agrees to all of the terms of the tender offer. The undersigned understands that tendering of shares under any one of the procedures described in Section 3 of the offer to purchase and in the Instructions to this letter of transmittal will constitute an agreement between the undersigned and Syms upon the terms and subject to the conditions of the tender offer. The undersigned acknowledges that under no circumstances will Syms pay interest on the Purchase Price. The undersigned recognizes that under certain circumstances set forth in the offer to purchase, Syms may terminate or amend the tender offer; or may postpone the acceptance for payment of, or the payment for, shares tendered, or may accept for payment fewer than all of the shares tendered hereby. The undersigned understands that certificate(s) for any shares not tendered or not purchased will be returned to the undersigned at the address indicated above. THE NAMES AND ADDRESSES OF THE REGISTERED HOLDERS SHOULD BE PRINTED, IF THEY ARE NOT ALREADY PRINTED ABOVE, EXACTLY AS THEY APPEAR ON THE CERTIFICATES REPRESENTING SHARES TENDERED HEREBY. THE CERTIFICATE NUMBERS, THE NUMBER OF SHARES REPRESENTED BY SUCH CERTIFICATES, AND THE NUMBER OF SHARES THAT THE UNDERSIGNED WISHES TO TENDER, SHOULD BE SET FORTH IN THE APPROPRIATE BOXES ABOVE. Unless otherwise indicated under "Special Payment Instructions," please issue the check for the aggregate Purchase Price of any shares purchased (less the amount of any federal income or backup withholding tax required to be withheld), and/or return any shares not tendered or not purchased, in the name(s) of the undersigned or, in the case of shares tendered by book-entry transfer, by credit to the account at the book-entry transfer facility designated above. Similarly, unless otherwise indicated under "Special Delivery Instructions," please mail the check for the aggregate Purchase Price of any shares purchased (less the amount of any federal income or backup withholding tax required to be withheld), and any certificates for shares not tendered or not purchased (and accompanying documents, as appropriate) to the undersigned at the address shown below the undersigned's signature(s). In the event that both the "Special Payment Instructions" and the "Special Delivery Instructions" are completed, please issue the check for the aggregate Purchase Price of any shares purchased (less the amount of any federal income or backup withholding tax required to be withheld) and/or return any shares not tendered or not purchased in the name(s) of, and mail said check and any certificates to, the person(s) so indicated. The undersigned recognizes that Syms has no obligation, under the Special Payment Instructions, to transfer any certificate for shares from the name of its registered holder, or to order the registration or transfer of shares tendered by book-entry transfer, if Syms purchases none of the shares represented by such certificate or tendered by such book-entry transfer. All authority conferred or agreed to be conferred in this letter of transmittal shall survive the death or incapacity of the undersigned and any obligations or duties of the undersigned under this letter of transmittal shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Except as stated in the offer to purchase, this tender is irrevocable. 7 - -------------------------------------------------------------------------------- STOCKHOLDER(S) SIGN HERE (SEE INSTRUCTIONS 1 AND 8) (PLEASE COMPLETE SUBSTITUTE FORM W-9) Must be signed by registered holder(s) exactly as name(s) appear(s) on share certificate(s) or on a security position listing or by person(s) authorized to become registered holder(s) by share certificates and documents transmitted herewith. If a signature is by an officer on behalf of a corporation or by an executor, administrator, trustee, guardian, attorney-in-fact, agent or other person acting in a fiduciary or representative capacity, please provide full title and see Instruction 8. SIGNATURE(S) OF STOCKHOLDER(S) Dated: , 2006 -------------------------------- Name(s): ------------------------------------------------------------------------ (SIGN HERE) Name(s): ------------------------------------------------------------------------ (PLEASE PRINT) Capacity (full title): ---------------------------------------------------------- Address: ------------------------------------------------------------------------ PLEASE INCLUDE ZIP CODE (Area Code) Telephone Number: --------------------------------------------------- Taxpayer Identification or Social Security No.: ------------------------------------------------------------ GUARANTEE OF SIGNATURE(S) (IF REQUIRED, SEE INSTRUCTIONS 1 AND 8) Authorized Signature: ----------------------------------------------------------- Name(s): ------------------------------------------------------------------------ Name of Firm: ------------------------------------------------------------------- Address: ------------------------------------------------------------------------ Address Line 2: ----------------------------------------------------------------- (Area Code) Telephone No.: ------------------------------------------------------ Dated: , 2006 -------------------------------- - -------------------------------------------------------------------------------- 8 - -------------------------------------------------------------------------------- INSTRUCTIONS TO LETTER OF TRANSMITTAL FORMING PART OF THE TERMS OF THE TENDER OFFER 1. GUARANTEE OF SIGNATURES. Except as otherwise provided in this Instruction, all signatures on this letter of transmittal must be guaranteed by a financial institution that is a participant in the Securities Transfer Agents Medallion Program or a bank, broker, dealer, credit union, savings association or other entity which is an "eligible guarantor institution" as such term is defined in Rule 17Ad-15 under the Exchange Act (an "Eligible Institution"). Signatures on this letter of transmittal need not be guaranteed if either (a) this letter of transmittal is signed by the registered holder(s) of the shares (which term, for purposes of this letter of transmittal, shall include any participant in the book-entry transfer facility whose name appears on a security position listing as the owner of shares) tendered herewith and such holder(s) have not completed either the box entitled "Special Payment Instructions" or "Special Delivery Instructions" in this letter of transmittal; or (b) such shares are tendered for the account of an Eligible Institution. See Instruction 8. You may also need to have any certificates you deliver endorsed or accompanied by a stock power, and the signatures on these documents may also need to be guaranteed. See Instruction 8. 2. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY PROCEDURES. You should use this letter of transmittal only if you are (a) forwarding certificates with this letter of transmittal, (b) going to deliver certificates under a notice of guaranteed delivery previously sent to the depositary, or (c) causing the shares to be delivered by book-entry transfer pursuant to the procedures set forth in Section 3 of the offer to purchase. In order for you to validly tender shares, the depositary must receive certificates for all physically tendered shares, or a confirmation of a book-entry transfer of all shares delivered electronically into the depositary's account at the book-entry transfer facility, together in each case with a properly completed and duly executed letter of transmittal, or an Agent's Message in connection with book-entry transfer, and any other documents required by this letter of transmittal, at one of its addresses set forth in this letter of transmittal by the expiration date (as defined in the offer to purchase). The term "Agent's Message" means a message transmitted by the book-entry transfer facility to, and received by, the depositary, which states that the book-entry transfer facility has received an express acknowledgment from the participant in the book-entry transfer facility tendering the shares that the participant has received and agrees to be bound by the terms of the letter of transmittal, and that Syms may enforce this agreement against the participant. GUARANTEED DELIVERY. If you cannot deliver your shares and all other required documents to the depositary by the expiration date, or the procedure for book-entry transfer cannot be completed on a timely basis, you may tender your shares, pursuant to the guaranteed delivery procedure described in Section 3 of the offer to purchase, by or through any Eligible Institution. To comply with the guaranteed delivery procedure, you must (1) properly complete and duly execute a notice of guaranteed delivery substantially in the form provided to you by Syms, specifying the price at which you are tendering your shares, including (where required) a Guarantee by an Eligible Institution in the form set forth in the notice of guaranteed delivery; (2) arrange for the depositary to receive the notice of guaranteed delivery by the expiration date; and (3) ensure that the depositary receives the certificates for all physically tendered shares or book-entry confirmation of electronic delivery of shares, as the case may be, together with a properly completed and duly executed letter of transmittal with any required signature guarantees or an Agent's Message, and all other documents required by this letter of transmittal, within three New York Stock Exchange, Inc. trading days after receipt by the depositary of such notice of guaranteed delivery, all as provided in Section 3 of the offer to purchase. The notice of guaranteed delivery may be delivered by hand or mail to the depositary and must include, if necessary, a guarantee by an eligible guarantor institution in the form set forth in such notice. For shares to be tendered validly under the guaranteed delivery procedure, the depositary must receive the notice of guaranteed delivery before the expiration date. - -------------------------------------------------------------------------------- 9 - -------------------------------------------------------------------------------- The method of delivery of all documents, including certificates for shares, is at the option and risk of the tendering stockholder. If you choose to deliver the documents by mail, we recommend that you use registered mail with return receipt requested, properly insured. In all cases, please allow sufficient time to assure delivery. Except as specifically permitted by Section 6 of the offer to purchase, Syms will not accept any alternative, conditional or contingent tenders, nor will it purchase any fractional shares. By executing this letter of transmittal, you waive any right to receive any notice of the acceptance for payment of your tendered shares. 3. INADEQUATE SPACE. If the space provided in the box captioned "Description of Shares Tendered" is inadequate, then you should list the certificate numbers, the number of shares represented by the certificate(s) and the number of shares tendered with respect to each certificate on a separate signed schedule attached to this letter of transmittal. 4. PARTIAL TENDERS AND UNPURCHASED SHARES. (NOT APPLICABLE TO STOCKHOLDERS WHO TENDER BY BOOK-ENTRY TRANSFER.) If you wish to tender (i.e., offer to sell) fewer than all of the shares evidenced by any certificate(s) that you deliver to the depositary, fill in the number of shares that you wish to tender (i.e., offer for sale) in the column entitled "Number of Shares Tendered." In this case, if Syms purchases some but not all of the shares that you tender, Syms will issue to you a new certificate for the unpurchased shares. The new certificate will be sent to the registered holder(s) as promptly as practicable after the expiration date. Unless you indicate otherwise, all shares represented by the certificate(s) listed and delivered to the depositary will be deemed to have been tendered. In the case of shares tendered by book-entry transfer at the book-entry transfer facility, any tendered but unpurchased shares will be credited to the appropriate account maintained by the tendering stockholder at the book-entry transfer facility. In each case, shares will be returned or credited without expense to the stockholder. 5. INDICATION OF PRICE AT WHICH SHARES ARE BEING TENDERED. In order to validly tender your shares by this letter of transmittal, you must either a. check the box under "SHARES TENDERED AT PRICE DETERMINED PURSUANT TO THE TENDER OFFER" in order to maximize the chance of having Syms purchase all of the shares that you tender (subject to the possibility of proration); OR b. check one of the boxes indicating the price per share at which you are tendering shares in the section entitled "SHARES TENDERED AT PRICE DETERMINED BY STOCKHOLDER." YOU MUST CHECK ONE, AND ONLY ONE, BOX. If you check more than one box or no boxes, then you will be deemed not to have validly tendered your shares. IF YOU WISH TO TENDER PORTIONS OF YOUR DIFFERENT SHARE HOLDINGS AT DIFFERENT PRICES, YOU MUST COMPLETE A SEPARATE LETTER OF TRANSMITTAL FOR EACH PRICE AT WHICH YOU WISH TO TENDER EACH SUCH PORTION OF YOUR SHARE HOLDINGS. You cannot tender the same shares at more than one price (unless, prior to tendering previously tendered shares at a new price, you validly withdrew those shares in accordance with Section 4 of the offer to purchase). By checking the box under "Shares Tendered at Price Determined Pursuant to the Tender Offer" you agree to accept the Purchase Price resulting from the tender offer process, which may be as low as $______ or as high as $______ per share. By checking a box under "Shares Tendered at Price Determined by Stockholder," you acknowledge that doing so could result in none of the shares you tender being purchased if the Purchase Price for the shares turns out to be less than the price you selected. 6. ODD LOTS. As described in Section 1 of the offer to purchase, if Syms purchases fewer than all shares properly tendered before the expiration date and not properly withdrawn, Syms will first purchase all shares tendered by any stockholder who (a) owns, beneficially or of record, an aggregate of fewer than 100 shares, and (b) tenders all of his or her shares at or below the Purchase Price. You will only receive this preferential treatment if you own fewer than 100 shares and tender ALL of the shares you own at or below the Purchase Price. Even if you otherwise qualify for "odd lot" preferential treatment, you will not receive such preference unless you complete the section entitled "Odd Lots" in this letter of transmittal. - -------------------------------------------------------------------------------- 10 7. ORDER OF PURCHASE IN THE EVENT OF PRORATION. As described in Section 1 of the offer to purchase, stockholders may specify the order in which their shares are to be purchased in the event that, as a result of proration or otherwise, Syms purchases some but not all of the tendered shares pursuant to the terms of the tender offer. The order of purchase may have an effect on the federal income tax treatment of any gain or loss on the shares that Syms purchases. See Sections 1, 6 and 14 of the offer to purchase. 8. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. a. EXACT SIGNATURES. If this letter of transmittal is signed by the registered holder(s) of the shares tendered hereby, the signature(s) must correspond exactly with the name(s) as written on the face of the certificate(s) without any change whatsoever. b. JOINT HOLDERS. If the shares are registered in the names of two or more persons, ALL such persons must sign this letter of transmittal. c. DIFFERENT NAMES ON CERTIFICATES. If any tendered shares are registered in different names on several certificates, you must complete, sign and submit as many separate letters of transmittal as there are different registrations of certificates. d. ENDORSEMENTS. If this letter of transmittal is signed by the registered holder(s) of the shares tendered hereby, no endorsements of certificate(s) representing such shares or separate stock powers are required unless payment of the Purchase Price is to be made, or the certificates for shares not tendered or tendered but not purchased are to be issued, to a person other than the registered holder(s). SIGNATURE(S) ON ANY SUCH CERTIFICATE(S) OR STOCK POWERS MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION. If this letter of transmittal is signed by a person other than the registered holder(s) of the shares tendered hereby, or if payment is to be made to a person other than the registered holder(s), the certificate(s) for the shares must be endorsed or accompanied by appropriate stock powers, in either case, signed exactly as the name(s) of the registered holder(s) appear(s) on the certificate(s) for such shares, and the signature(s) on such certificates or stock power(s) must be guaranteed by an Eligible Institution. See Instruction 1. If this letter of transmittal or any certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or any other person acting in a fiduciary or representative capacity, such person should so indicate when signing and must submit to the depositary evidence satisfactory to Syms that such person has authority so to act. 9. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. If any certificate representing any shares has been lost, stolen, destroyed or mutilated, you should notify American Stock Transfer & Trust Company, the depositary for this offer, by calling 877-248-6417 and asking for instructions on obtaining replacement certificate(s) at the address specified on the cover of this letter of transmittal. The depositary will require you to complete an affidavit of loss and return it to depositary. You will then be instructed by the depositary as to the steps you must take in order to replace the certificate. You may be required to post a bond to secure against the risk that the certificate may be subsequently recirculated. We cannot process this letter of transmittal and related documents until you have followed the procedures for replacing lost, stolen, destroyed or mutilated certificates. We urge you to contact the depositary immediately, in order to receive further instructions, for a determination as to whether you will need to post a bond, and to permit timely processing of this documentation. 10. STOCK TRANSFER TAXES. Except as provided in this Instruction 10, no stock transfer tax stamps or funds to cover such stamps need to accompany this letter of transmittal. Syms will pay or cause to be paid any stock transfer taxes payable on the transfer to it of shares purchased under the tender offer. If, however: a. payment of the Purchase Price is to be made to any person other than the registered holder(s); b. certificate(s) for shares not tendered or tendered but not purchased are to be returned in the name of and to any person other than the registered holder(s) of such shares; OR - -------------------------------------------------------------------------------- 11 c. tendered certificates are registered in the name of any person(s) other than the person(s) signing this letter of transmittal, then the depositary will deduct from the Purchase Price the amount of any stock transfer taxes (whether imposed on the registered holder(s), such other person(s) or otherwise) payable on account of the transfer of cash or stock thereby made to such person, unless satisfactory evidence of the payment of such taxes or an exemption from them is submitted with this letter of transmittal. 11. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If any of the following conditions holds: a. check(s) for the Purchase Price of any shares purchased pursuant to the tender offer are to be issued to a person other than the person(s) signing this letter of transmittal; or b. check(s) for the Purchase Price are to be sent to any person other than the person signing this letter of transmittal, or to the person signing this letter of transmittal, but at a different address; or c. certificates for any shares not tendered, or tendered but not purchased, are to be returned to and in the name of a person other than the person(s) signing this letter of transmittal, then, in each such case, you must complete the boxes captioned "Special Payment Instructions" and/or "Special Delivery Instructions" as applicable in this letter of transmittal and make sure that the signatures herein are guaranteed as described in Instructions 1 and 8. 12. CONDITIONAL TENDERS. As described in Sections 1 and 6 of the offer to purchase, stockholders may condition their tenders on Syms purchasing all of their shares, or specify a minimum number of shares that Syms must purchase for the tender of any of their shares to be effective. If you wish to make a conditional tender you must indicate this choice in the box entitled "Conditional Tender" in this letter of transmittal or, if applicable, the notice of guaranteed delivery; and you must calculate and appropriately indicate, in the space provided, the minimum number of shares that Syms must purchase if Syms purchases any shares. As discussed in Sections 1 and 6 of the offer to purchase, proration may affect whether Syms accepts conditional tenders. Proration may result in all of the shares tendered pursuant to a conditional tender being deemed to have been withdrawn, if Syms could not purchase the minimum number of shares required to be purchased by the tendering stockholder due to proration. If, because of proration, Syms will not purchase the minimum number of shares that you designate, Syms may accept conditional tenders by random lot, if necessary. However, to be eligible for purchase by random lot, you must have tendered all of your shares and must have checked the box so indicated. Upon selection by random lot, if any, Syms will limit its purchase in each case to the designated minimum number of shares. If you are an "odd lot" holder and you tender all of your shares, you cannot conditionally tender, since your shares will not be subject to proration. All tendered shares will be deemed unconditionally tendered unless the "Conditional Tender" box is checked and appropriately completed. When deciding whether to tender shares conditionally, we urge each stockholder to consult his or her own tax advisor. 13. TAX IDENTIFICATION NUMBER AND BACKUP WITHHOLDING. Under the federal income tax laws, the depositary will be required to withhold 28% of the amount of any payments made to certain stockholders pursuant to the tender offer. In order to avoid such backup withholding, each tendering stockholder that is a U.S. person (including a U.S. resident alien) must provide the depositary with such stockholder's correct taxpayer identification number by completing the Substitute Form W-9 set forth below. In general, if a stockholder is an individual, the taxpayer identification number is the social security number of such individual. If the depositary is not provided with the correct taxpayer identification number, the stockholder may be subject to a $50 penalty imposed by the Internal Revenue Service and payments that are made to such stockholder pursuant to the tender offer may be subject to backup withholding. Certain stockholders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. In order to satisfy the depositary that a - -------------------------------------------------------------------------------- 12 foreign individual qualifies as an exempt recipient, such stockholder must submit the appropriate IRS Form W-8, signed under penalties of perjury, attesting to that individual's exempt status. You can obtain such statements from the depositary. For further information concerning backup withholding and instructions for completing the Substitute Form W-9 (including how to obtain a taxpayer identification number if you do not have one and how to complete the Substitute Form W-9 if shares are held in more than one name), consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. Failure to complete the Substitute Form W-9 will not, by itself, cause shares to be deemed invalidly tendered, but may require the depositary to withhold 28% of the amount of any payments made pursuant to the tender offer. Backup withholding is not an additional federal income tax. Rather, the federal income tax liability of a person subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, the taxpayer may obtain a refund, provided that the required information is furnished to the Internal Revenue Service. NOTE: FAILURE TO COMPLETE AND RETURN THE SUBSTITUTE FORM W-9 MAY RESULT IN BACKUP WITHHOLDING OF 28% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE TENDER OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. Unless Syms determines that a reduced rate of withholding is applicable pursuant to a tax treaty or that an exemption from withholding is applicable because gross proceeds paid pursuant to the tender offer are effectively connected with the conduct of a trade or business within the United States, Syms will be required to withhold federal income tax at a rate of 30% from such gross proceeds paid to a foreign stockholder or his agent. For this purpose, a foreign stockholder is any stockholder that is not (i) a citizen or resident of the United States, (ii) a corporation, partnership or other entity created or organized in or under the laws of the United States, (iii) a trust whose administration is subject to the primary supervision of a U.S. court and which has one or more U.S. persons who have the authority to make all substantial decisions, or (iv) an estate the income of which is subject to United States federal income taxation regardless of its source. A foreign stockholder may be eligible to file for a refund of such tax or a portion of such tax if such stockholder meets the "complete redemption," "substantially disproportionate" or "not essentially equivalent to a dividend" tests described in the offer to purchase under the caption "The Tender Offer -- 14. U.S. Federal Income Tax Consequences" or if such stockholder is entitled to a reduced rate of withholding pursuant to a treaty and Syms withheld at a higher rate. In order to obtain a reduced rate of withholding under a tax treaty, a foreign stockholder must deliver to the depositary, before the payment, a properly completed and executed statement claiming such an exemption or reduction. A stockholder can obtain such statements from the depositary. In order to claim an exemption from withholding on the grounds that gross proceeds paid pursuant to the tender offer are effectively connected with the conduct of a trade or business within the United States, a foreign stockholder must deliver to the depositary a properly executed statement claiming exemption. A stockholder can obtain such statements from the depositary. We urge foreign stockholders to consult their own tax advisors regarding the application of federal income tax withholding, including eligibility for a withholding tax reduction or exemption and the refund procedure. 14. IRREGULARITIES. Syms will determine in its sole discretion all questions as to the Purchase Price, the number of shares to accept, and the validity, eligibility (including time of receipt), and acceptance for payment of any tender of shares. Any such determinations will be final and binding on all parties. Syms reserves the absolute right to reject any or all tenders of shares it determines not be in proper form or the acceptance of which or payment for which may, in the opinion of Syms, be unlawful. Syms also reserves the absolute right to waive any of the conditions of the tender offer and any defect or irregularity in the tender of any particular shares, and Syms's interpretation of the terms of the tender offer, including these instructions, will be final and binding on all parties. No tender of shares will be deemed to be properly - -------------------------------------------------------------------------------- 13 made until all defects and irregularities have been cured or waived. Unless waived, any defects or irregularities in connection with tenders must be cured within such time as Syms shall determine. None of Syms, the dealer manager (as defined in the offer to purchase), the depositary, the information agent (as defined in the offer to purchase) or any other person is or will be obligated to give notice of any defects or irregularities in tenders and none of them will incur any liability for failure to give any such notice. 15. QUESTIONS; REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Please direct any questions or requests for assistance or for additional copies of the offer to purchase, the letter of transmittal or the notice of guaranteed delivery to the information agent at the telephone number and address set forth below. You may also contact the dealer manager or your broker, dealer, commercial bank or trust company for assistance concerning the tender offer. 16. STOCK OPTION PLANS. If you hold vested options in Syms's stock option plans, then you may exercise such vested options by paying the cash exercise price and receiving shares which you may then tender in accordance with the terms of the tender offer. An exercise of an option cannot be revoked even if shares received upon exercise thereof and tendered in the offer are not purchased in the offer for any reason. IMPORTANT: THE DEPOSITARY MUST RECEIVE THIS LETTER OF TRANSMITTAL (TOGETHER WITH CERTIFICATE(S) FOR SHARES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR, IF APPLICABLE, THE NOTICE OF GUARANTEED DELIVERY, BEFORE THE EXPIRATION DATE. - -------------------------------------------------------------------------------- 14
- --------------------------------------------------------------------------------------------------------------- YOU MUST COMPLETE AND SIGN THE SUBSTITUTE FORM W-9 BELOW. PLEASE PROVIDE YOUR SOCIAL SECURITY NUMBER OR OTHER TAXPAYER IDENTIFICATION NUMBER ("TIN") AND CERTIFY THAT YOU ARE NOT SUBJECT TO BACKUP WITHHOLDING. PAYER'S NAME: AMERICAN STOCK TRANSFER & TRUST COMPANY - --------------------------------------------------------------------------------------------------------------- SUBSTITUTE FORM W-9 DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE - --------------------------------------------------------------------------------------------------------------- Name, as shown on your income tax return: - --------------------------------------------------------------------------------------------------------------- Business name, if different from above: - --------------------------------------------------------------------------------- ----------------------------- Please check the appropriate box indicating your status: |_| Individual/ Sole Proprietor |_| Corporation |_| Partnership |_| Other.......................... |_| Exempt from withholding - --------------------------------------------------------------------------------- ----------------------------- Address (number, street, and apt. or suite no.): - --------------------------------------------------------------------------------------------------------------- City, State, Zip Code: - --------------------------------------------------------------------------------- ----------------------------- PART I TAXPAYER IDENTIFICATION NUMBER (TIN) -------------------------- PLEASE PROVIDE YOUR TIN ON THE APPROPRIATE LINE AT THE RIGHT. Social Security Number The TIN provided must match the name given on line 1 to avoid backup withholding. For or individuals, this is your social security number. However, for a resident alien, sole proprietor, or disregarded entity, or if you do not have a number, see the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. For other entities, it is your employer identification number. If you are awaiting a -------------------------- TIN, write "Applied For" in this Part I, complete the "Certificate Of Employer Identification Awaiting Taxpayer Identification Number" below. Number - --------------------------------------------------------------------------------------------------------------- PART II CERTIFICATION UNDER PENALTIES OF PERJURY, I CERTIFY THAT: (1) THE NUMBER SHOWN ON THIS FORM IS MY CORRECT TAXPAYER IDENTIFICATION NUMBER (OR I AM WAITING FOR A NUMBER TO BE ISSUED TO ME), AND (2) I AM NOT SUBJECT TO BACKUP WITHHOLDING BECAUSE (A) I AM EXEMPT FROM BACKUP WITHHOLDING, OR (B) I HAVE NOT BEEN NOTIFIED BY THE IRS THAT I AM SUBJECT TO BACKUP WITHHOLDING AS A RESULT OF A FAILURE TO REPORT ALL INTEREST OR DIVIDENDS, OR (C) THE IRS HAS NOTIFIED ME THAT I AM NO LONGER SUBJECT TO BACKUP WITHHOLDING, AND (3) I AM A U.S. PERSON (INCLUDING A U.S. RESIDENT ALIEN). CERTIFICATION INSTRUCTIONS -- You must cross out item (2) above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. THE IRS DOES NOT REQUIRE YOUR CONSENT TO ANY PROVISION OF THIS DOCUMENT OTHER THAN THE CERTIFICATIONS REQUIRED TO AVOID BACKUP WITHHOLDING. =============================================================================================================== SIGN Signature of U.S. Person Date: HERE - --------------------------------------------------------------------------------------------------------------- NOTE: FAILURE TO COMPLETE AND RETURN THE SUBSTITUTE FORM W-9 MAY RESULT IN BACKUP WITHHOLDING OF 28% OF ANY PAYMENTS MADE TO YOU ON ACCOUNT OF THE TENDER OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. COMPLETE THE FOLLOWING CERTIFICATION IF YOU WROTE "APPLIED FOR" INSTEAD OF A TIN ON THE SUBSTITUTE FORM W-9. - --------------------------------------------------------------------------------------------------------------- CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER =============================================================================================================== I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a TIN to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a TIN by the time of payment, 28% of all reportable payments made to me will be withheld. =============================================================================================================== SIGN Signature of U.S. Person Date: HERE - ---------------------------------------------------------------------------------------------------------------
15
- --------------------------------------------------------------------------------------------------------------- GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER FOR THE PAYEE (YOU) TO GIVE THE PAYER -- Social Security numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the number to give the payer. All "Section" references are to the Internal Revenue Code of 1986, as amended. "IRS" is the Internal Revenue Service. - --------------------------------------------------------------------------------------------------------------- GIVE THE NAME AND SOCIAL SECURITY FOR THIS TYPE OF ACCOUNT: NUMBER OF - ----------------------------------------------------------------------------------------------------------- 1. Individual The individual 2. Resident alien who is not eligible for an SSN Use IRS individual taxpayer identification number (ITIN). 3. Two or more individuals (joint account) The actual owner of the account or, if combined funds, the first individual on the account(1) 4. Custodian account of a minor (Uniform Gift to The minor(2) Minors Act) 5. a. The usual revocable savings trust (grantor The grantor-trustee(1) is also trustee) b. So-called trust account that is not a legal The actual owner(1) or valid trust under state law 6. Sole proprietorship or single-owner LLC The owner(3) - --------------------------------------------------------------------------------------------------------------- GIVE THE NAME AND EMPLOYER IDENTIFICATION FOR THIS TYPE OF ACCOUNT: NUMBER OF - --------------------------------------------------------------------------------------------------------------- 7. Sole proprietorship or single-member LLC The owner(3) 8. A valid trust, estate, or pension trust The legal entity(4) 9. Corporate or LLC electing corporate status on Form 8832 The corporation 10. Association, club, religious, charitable, educational, or other The organization tax-exempt organization 11. Partnership or multi-member LLC The partnership 12. A broker or registered nominee The broker or nominee 13. Account with the Department of Agriculture in the name of a public he public entity entity (such as a state or local government, school district, or T prison) that receives agricultural program payments - --------------------------------------------------------------------------------------------------------------- (1) List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that person's number must be furnished. (2) Circle the minor's name and furnish the minor's social security number. (3) You must show your individual name, but you may also enter your business or "doing business as" name. You may use either your social security number or your employer identification number (if you have one). (4) List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the taxpayer identification number of the personal representative or trustee unless the legal entity itself is not designated in the account title.) - --------------------------------------------------------------------------------------------------------------- NOTE: IF NO NAME IS CIRCLED WHEN THERE IS MORE THAN ONE NAME LISTED, THE NUMBER WILL BE CONSIDERED TO BE THAT OF THE FIRST NAME LISTED. - ---------------------------------------------------------------------------------------------------------------
16 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 OBTAINING A NUMBER If you do not have a taxpayer identification number, apply for one immediately. To apply for a SSN, get Form SS-5, Application for a Social Security Card, from your local Social Security Administration office. Get Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for a TIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can get Forms W-7 and SS-4 from the IRS by calling 1 (800) TAX-FORM, or from the IRS Web Site at www.irs.gov. PAYEES EXEMPT FROM BACKUP WITHHOLDING PAYEES SPECIFICALLY EXEMPTED FROM BACKUP WITHHOLDING INCLUDE: 1. An organization exempt from tax under Section 501(a), an individual retirement account (IRA), or a custodial account under Section 403(b)(7) if the account satisfies the requirements of Section 401(f)(2). 2. The United States or any of its agencies or instrumentalities. 3. A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities. 4. A foreign government or any of its political subdivisions, agencies or instrumentalities. 5. An international organization or any of its agencies or instrumentalities. PAYEES THAT MAY BE EXEMPT FROM BACKUP WITHHOLDING INCLUDE: 6. A corporation. 7. A foreign central bank of issue. 8. A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States. 9. A futures commission merchant registered with the Commodity Futures Trading Commission. 10. A real estate investment trust. 11. An entity registered at all times during the tax year under the Investment Company Act of 1940. 12. A common trust fund operated by a bank under Section 584(a). 13. A financial institution. 14. A middleman known in the investment community as a nominee or custodian. 15. A trust exempt from tax under Section 664 or described in Section 4947. The chart below shows types of payments that may be exempt from backup withholding. The chart applies to the exempt recipients listed above, 1 through 15. - -------------------------------------------------------------------------------- IF THE PAYMENT IS FOR: THEN THE PAYMENT IS EXEMPT FOR: - -------------------------------------------------------------------------------- Interest and dividend payments All exempt recipients except for 9 - -------------------------------------------------------------------------------- Broker transactions Exempt recipients 1 through 13. Also, a person registered under the Investment Advisers Act of 1940 who regularly acts as a broker - -------------------------------------------------------------------------------- EXEMPT PAYEES SHOULD COMPLETE A SUBSTITUTE FORM W-9 TO AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, CHECK THE APPROPRIATE BOX FOR YOUR STATUS, CHECK THE "EXEMPT FROM BACKUP WITHHOLDING" BOX, SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER. FOREIGN PAYEES WHO ARE NOT SUBJECT TO BACKUP WITHHOLDING SHOULD COMPLETE AN APPROPRIATE FORM W-8 AND RETURN IT TO THE PAYER. PRIVACY ACT NOTICE. Section 6109 requires you to provide your correct taxpayer identification number to payers who must file information returns with the IRS to report interest, dividends, and certain other income paid to you to the IRS. The IRS uses the numbers for identification purposes and to help verify the accuracy of your return and may also provide this information to various government agencies for tax 17 enforcement or litigation purposes and to cities, states, and the District of Columbia to carry out their tax laws, and may also disclose this information to other countries under a tax treaty, or to Federal and state agencies to enforce Federal nontax criminal laws and to combat terrorism. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must generally withhold 28% of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply. PENALTIES (1) FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. If you fail to furnish your correct taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty. (3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE. The letter of transmittal and certificates for shares and any other required documents should be sent or delivered by each tendering stockholder or its broker, dealer, commercial bank, trust company or other nominee to the depositary at one of its addresses set forth on the cover letter of this letter of transmittal. Any questions or requests for assistance or for additional copies of the offer to purchase, the letter of transmittal or the notice of guaranteed delivery may be directed to the information agent at the telephone number and address set forth below. You may also contact the dealer manager or your broker, dealer, commercial bank or trust company for assistance concerning the tender offer. To confirm delivery of your shares, please contact the depositary. The information agent for the tender offer is: D. F. King & Co., Inc. 48 Wall Street 22nd Floor New York, NY 10005 Banks and Brokerage Firms, Please Call: (212) 269-5550 All Others Call Toll-free: (888) 887-1266 The dealer manager for the tender offer is: TM CAPITAL CORP. One Battery Park Plaza New York, NY 10004 Telephone: (212) 809-1360 EX-99.(A)(1)(C) 4 c42320_ex99-a1c.txt EXHIBIT (a)(1)(C) NOTICE OF GUARANTEED DELIVERY (NOT TO BE USED FOR SIGNATURE GUARANTEE) FOR OFFER TO PURCHASE FOR CASH UP TO 3,350,000 SHARES OF ITS COMMON STOCK AT A PURCHASE PRICE NOT GREATER THAN $18.00 NOR LESS THAN $16.00 PER SHARE BY SYMS CORP. - -------------------------------------------------------------------------------- THE TENDER OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FRIDAY, MAY 26, 2006 UNLESS SYMS CORP. EXTENDS THE TENDER OFFER. - -------------------------------------------------------------------------------- As set forth in Section 3 of the offer to purchase, dated April 27, 2006, you should use this notice of guaranteed delivery to accept the tender offer (as defined herein) if: (a) your share certificates are not immediately available or you cannot deliver certificates representing shares of common stock, par value $0.05 per share (the "shares"), of Syms Corp., a New Jersey corporation ("Syms"), prior to the "expiration date" (as defined in Section 1 of the offer to purchase); or (b) the procedure for book-entry transfer cannot be completed before the expiration date (as specified in Section 1 of the offer to purchase); or (c) time will not permit a properly completed and duly executed letter of transmittal and all other required documents to reach the depositary referred to below before the expiration date. You may deliver this notice of guaranteed delivery signed and properly completed, by hand, mail or overnight courier so that the depositary receives it before the expiration date. See Section 3 of the offer to purchase and Instruction 2 to the letter of transmittal. THE DEPOSITARY FOR THE TENDER OFFER IS American Stock Transfer & Trust Company BY MAIL OR OVERNIGHT COURIER: BY HAND: American Stock Transfer & Trust Company American Stock Transfer & Trust Company Operations Center Attn: Reorganization Department Attn: Reorganization Department 59 Maiden Lane 6201 15th Avenue New York, NY 10038 Brooklyn, NY 11219 Delivery of this notice of guaranteed delivery to an address other than those shown above does not constitute a valid delivery. Deliveries to Syms, to the dealer manager of the tender offer or to the information agent of the tender offer will not be forwarded to the depositary and therefore will not constitute valid delivery. Deliveries to the book-entry transfer facility (as defined in the offer to purchase) will not constitute valid delivery to the depositary. You cannot use this notice of guaranteed delivery form to guarantee signatures. If a signature on the letter of transmittal is required to be guaranteed by an "eligible guarantor institution" (as defined in Section 3 of the offer to purchase) under the instructions thereto, such signature must appear in the applicable space provided in the signature box on the letter of transmittal. 2 Ladies and Gentlemen: The undersigned hereby tenders to Syms the number of shares indicated below, at the price per share indicated below, net to the seller in cash, without interest, upon the terms and subject to the conditions set forth in the offer to purchase and the related letter of transmittal, which together (and as each may be amended and supplemented from time to time) constitute the tender offer, and the receipt of which is hereby acknowledged. This tender is being made pursuant to the guaranteed delivery procedure set forth in Section 3 of the offer to purchase. NUMBER OF SHARES BEING TENDERED HEREBY: _____________ SHARES CHECK ONE AND ONLY ONE BOX. IF YOU CHECK MORE THAN ONE BOX, OR IF YOU DO NOT CHECK ANY BOX, YOU WILL HAVE FAILED TO VALIDLY TENDER ANY SHARES. SHARES TENDERED AT PRICE DETERMINED PURSUANT TO THE TENDER OFFER (SEE INSTRUCTION 5 OF THE LETTER OF TRANSMITTAL) |_| The undersigned wants to maximize the chance of having Syms purchase all shares the undersigned is tendering (subject to the possibility of proration). Accordingly, by checking this ONE box INSTEAD OF ONE OF THE PRICE BOXES BELOW, the undersigned hereby tenders shares and is willing to accept the purchase price determined by Syms pursuant to the tender offer (the "Purchase Price"). This action could result in receiving a price per share of as low as $16.00. -- OR -- SHARES TENDERED AT PRICE DETERMINED BY STOCKHOLDER (SEE INSTRUCTION 5 OF THE LETTER OF TRANSMITTAL) By checking ONE of the boxes below INSTEAD OF THE BOX ABOVE, the undersigned hereby tenders shares at the price checked. This action could result in none of the shares being purchased if the Purchase Price is less than the price checked below. A STOCKHOLDER WHO DESIRES TO TENDER SHARES AT MORE THAN ONE PRICE MUST COMPLETE A SEPARATE NOTICE OF GUARANTEED DELIVERY FOR EACH PRICE AT WHICH THE STOCKHOLDER TENDERS SHARES. You cannot tender the same shares at more than one price, unless you have previously validly withdrawn those shares at a different price in accordance with Section 4 of the offer to purchase. PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED |_| $16.25 |_| $16.50 |_| $16.75 |_| $17.00 |_| $17.25 |_| $17.50 |_| $17.75 |_| $18.00 YOU WILL NOT HAVE VALIDLY TENDERED YOUR SHARES UNLESS YOU CHECK ONE AND ONLY ONE BOX ON THIS PAGE. 3 - -------------------------------------------------------------------------------- ODD LOTS (SEE INSTRUCTION 6 OF THE LETTER OF TRANSMITTAL) To be completed ONLY if shares are being tendered by or on behalf of a person owning, beneficially or of record, an aggregate of fewer than 100 shares. On the date hereof, the undersigned either (check one box): - --- --- |_| is the beneficial or record owner of an aggregate of fewer than 100 shares and is tendering all of those shares; or |_| is a broker, dealer, commercial bank, trust company or other nominee that (i) is tendering, for the beneficial owner(s) thereof, shares with respect to which it is the record holder, and (ii) believes, based upon representations made to it by such beneficial owner(s), that each such person was the beneficial owner of an aggregate of fewer than 100 shares and is tendering all of such shares. - -------------------------------------------------------------------------------- IN ADDITION, THE UNDERSIGNED IS TENDERING SHARES (CHECK ONE BOX): - --- --- |_| at the Purchase Price, which will be determined by Syms in accordance with the terms of the tender offer (persons checking this box should check the first box on page [3] of this notice of guaranteed delivery, under the heading "Shares Tendered at Purchase Price Pursuant to the Tender Offer"); or |_| at the price per share indicated under the heading, "Price (in Dollars) Per Share at Which Shares Are Being Tendered" on [page 3] of this notice of guaranteed delivery. - -------------------------------------------------------------------------------- CONDITIONAL TENDER (SEE INSTRUCTION 12 OF THE LETTER OF TRANSMITTAL) A tendering stockholder may condition such stockholder's tender of any shares upon the purchase by Syms of a specified minimum number of the shares such stockholder tenders, as described in Section 6 of the offer to purchase. Unless Syms purchases at least the minimum number of shares you indicate below pursuant to the terms of the tender offer, Syms will not purchase any of the shares tendered below. It is the tendering stockholder's responsibility to calculate that minimum number, and we urge each stockholder to consult his or her own tax advisor in doing so. Unless you check the box immediately below and specify, in the space provided, a minimum number of shares that Syms must purchase if Syms purchases any shares, Syms will deem your tender unconditional. - --- --- |_| The minimum number of shares that Syms must purchase if Syms purchases any shares, is: ____________________ shares. - -------------------------------------------------------------------------------- If, because of proration, Syms will not purchase the minimum number of shares that you designate, Syms may accept conditional tenders by random lot, if necessary. However, to be eligible for purchase by random lot, the tendering stockholder must have tendered all of his or her shares. To certify that you are tendering all of the shares you own, check the box below. - --- --- |_| The tendered shares represent all shares held by the undersigned. 4
- ----------------------------------------------------------------------------------------------------------------- STOCKHOLDERS COMPLETE AND SIGN BELOW - ----------------------------------------------------------------------------------------------------------------- ____________________________________ _________________________________________________________________________ Certificate No. (if available) Signature of Stockholder Printed Name: ________________________________Date:______________, 2006 ____________________________________ _________________________________________________________________________ Certificate No. (if available) Signature of Stockholder Printed Name: ________________________________Date:______________, 2006 ____________________________________ _________________________________________________________________________ Certificate No. (if available) Signature of Stockholder Printed Name: ________________________________Date:______________, 2006 ____________________________________ _________________________________________________________________________ Certificate No. (if available) Signature of Stockholder Printed Name: ________________________________Date:______________, 2006 _________________________________________________ ____________________________________________________________ Street Address(es) of Stockholders: _________________________________________________ ____________________________________________________________ City, State, Zip: _________________________________________________ ____________________________________________________________ Phone Number(s) with Area Code - ----------------------------------------------------------------------------------------------------------------- IF SHARES WILL BE TENDERED BY BOOK-ENTRY TRANSFER PROVIDE THE FOLLOWING INFORMATION: - ----------------------------------------------------------------------------------------------------------------- __________________________________________________________ ___________________________________________________ Name of Tendering Institution: Account No.
5 - -------------------------------------------------------------------------------- GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, a bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of the Securities Transfer Agents Medallion Program or a bank, broker, dealer, credit union, savings association or other entity which is an "Eligible Guarantor Institution," as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (each of the foregoing constituting an "Eligible Guarantor Institution") guarantees the delivery of the shares tendered hereby to the depositary, in proper form for transfer, or a confirmation that the shares tendered hereby have been delivered under the procedure for book-entry transfer set forth in the offer to purchase into the depositary's account at the book-entry transfer facility, together with a properly completed and duly executed letter of transmittal and any other required documents, all within three New York Stock Exchange trading days of the date hereof. - -------------------------------------------------------------------------------- - --------------------------------------- -------------------------------------- Name of Firm Name of Firm - --------------------------------------- -------------------------------------- Authorized Signature Authorized Signature - --------------------------------------- -------------------------------------- Printed Name Printed Name - --------------------------------------- -------------------------------------- Title Title - --------------------------------------- -------------------------------------- Street Address Street Address - --------------------------------------- -------------------------------------- City, State, Zip City, State, Zip - --------------------------------------- -------------------------------------- Telephone Number with Area Code Telephone Number with Area Code Dated: , 2006 Dated: , 2006 -------------------------- ------------------------- DO NOT SEND SHARE CERTIFICATES WITH THIS NOTICE OF GUARANTEED DELIVERY. SHARE CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL. 6 EX-99.(A)(1)(D) 5 c42320_ex99-a1d.txt EXHIBIT (a)(1)(D) OFFER TO PURCHASE FOR CASH UP TO 3,350,000 SHARES OF ITS COMMON STOCK AT A PURCHASE PRICE NOT GREATER THAN $18.00 NOR LESS THAN $16.00 PER SHARE BY SYMS CORP. - -------------------------------------------------------------------------------- THE TENDER OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FRIDAY, MAY 26, 2006, UNLESS SYMS CORP. EXTENDS THE TENDER OFFER. - -------------------------------------------------------------------------------- April 27, 2006 To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: Syms Corp., a New Jersey corporation ("Syms"), has appointed us to act as the dealer manager in connection with its offer to purchase for cash up to 3,350,000 shares of its common stock, par value $0.05 per share (the "shares"), at a price not greater than $18.00 nor less than $16.00 per share, net to the seller in cash, without interest. The terms and conditions of the tender offer are set forth in Syms's offer to purchase, dated April 27, 2006 and the letter of transmittal, which together (and as each may be amended and supplemented from time to time) constitute the tender offer. Unless the associated preferred stock purchase rights are redeemed prior to the expiration of the tender offer, a tender of shares will also constitute a tender of the associated preferred stock purchase rights. Syms will, upon the terms and subject to the conditions of the tender offer, determine a single per share price, not greater than $18.00 nor less than $16.00 per share (the "Purchase Price"), that it will pay for shares properly tendered and not properly withdrawn pursuant to the terms of the tender offer, taking into account the number of shares so tendered and the prices specified by tendering stockholders. Syms will select the lowest Purchase Price that will allow it to purchase 3,350,000 shares, or such fewer number of shares as are properly tendered and not properly withdrawn, at prices not greater than $18.00 nor less than $16.00 per share, under the tender offer. All shares properly tendered before the expiration date (as specified in Section 1 of the offer to purchase) at prices at or below the Purchase Price and not validly withdrawn will be purchased by Syms at the Purchase Price, net to the seller in cash, without interest, upon the terms and subject to the conditions of the tender offer, including the "odd lot," proration and conditional tender provisions thereof. See Section 1 of the offer to purchase. Shares tendered at prices in excess of the Purchase Price, and shares that Syms does not accept for purchase because of proration or conditional tenders, will be returned at Syms's expense to the stockholders that tendered such shares, as promptly as practicable after the expiration date. Syms expressly reserves the right, in its sole discretion, to purchase more than 3,350,000 shares under the tender offer, subject to applicable law. If, at the expiration date more than 3,350,000 shares (or such greater number of shares as Syms may elect to purchase, subject to applicable law) are properly tendered at or below the Purchase Price and not properly withdrawn, Syms will buy shares: o first, from all holders of "odd lots" (holders of less than 100 shares) who properly tender all their shares at or below the Purchase Price and do not properly withdraw them before the expiration date; o second, on a pro rata basis from all other stockholders who properly tender shares at or below the Purchase Price, other than stockholders who tender conditionally and whose conditions are not satisfied; and o third, only if necessary to permit Syms to purchase 3,350,000 shares (or such greater number of shares as Syms may elect to purchase, subject to applicable law) from holders who have tendered shares subject to the condition that Syms purchase a specified minimum number of the holder's shares if Syms purchases any of the holder's shares in the tender offer (for which the condition was not initially satisfied) at or below the Purchase Price by random lot, to the extent feasible. To be eligible for purchase by random lot, stockholders whose shares are conditionally tendered must have tendered all of their shares. THE TENDER OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED. THE TENDER OFFER IS, HOWEVER, SUBJECT TO OTHER CONDITIONS. SEE SECTION 7 OF THE OFFER TO PURCHASE. For your information and for forwarding to your clients for whom you hold shares registered in your name or in the name of your nominee, we are enclosing the following documents: 1. Offer to Purchase, dated April 27, 2006; 2. Letter to Clients, which you may send to your clients for whom you hold shares registered in your name or in the name of your nominee, with an Instruction Form provided for obtaining such clients' instructions with regard to the tender offer; 3. Letter of Transmittal, for your use and for the information of your clients, together with accompanying instructions, Substitute Form W-9, and Guidelines of the Internal Revenue Service for Certification of Taxpayer Identification Number on Substitute Form W-9; 4. Notice of Guaranteed Delivery, to be used to accept the tender offer in the event that you are unable to deliver the share certificates, together with all other required documents, to the depositary before the expiration date, or if the procedure for book-entry transfer cannot be completed before the expiration date; and WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. THE TENDER OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON MAY 26, 2006, UNLESS SYMS EXTENDS THE TENDER OFFER. No fees or commissions will be payable to brokers, dealers, commercial banks, trust companies or any person for soliciting tenders of shares under the tender offer other than fees paid to the dealer manager and the information agent, the depositary and the trustee for certain Syms employee plans, as described in the offer to purchase. Syms will, however, upon request, reimburse brokers, dealers, commercial banks and trust companies for reasonable and necessary costs and expenses incurred by them in forwarding the enclosed materials to their customers who are beneficial owners of shares held by them as a nominee or in a fiduciary capacity. Syms will pay or cause to be paid any stock transfer taxes applicable to its purchase of shares pursuant to the tender offer, except as otherwise provided in the offer to purchase and letter of transmittal (see Instruction 10 of the letter of transmittal). No broker, dealer, bank, trust company or fiduciary shall be deemed to be either our agent or the agent of Syms, the depositary, or the information agent for purposes of the tender offer. For shares to be properly tendered pursuant to the tender offer, the depositary must timely receive (1) the share certificates or confirmation of receipt of such shares under the procedure for book-entry 4 transfer, together with a properly completed and duly executed letter of transmittal, including any required signature guarantees or an "agent's message" (as defined in the offer to purchase and the letter of transmittal) and any other documents required pursuant to the tender offer, or (2) the tendering stockholder must comply with the guaranteed delivery procedures, all in accordance with the instructions set forth in the offer to purchase and letter of transmittal. Stockholders (a) whose share certificates are not immediately available or who will be unable to deliver to the depositary the certificate(s) for the shares being tendered and all other required documents before the expiration date, or (b) who cannot complete the procedures for book-entry transfer before the expiration date, must tender their shares according to the procedure for guaranteed delivery set forth in Section [3] of the offer to purchase. NEITHER SYMS NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO ANY STOCKHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL OR ANY SHARES OR AS TO THE PRICE OR PRICES AT WHICH TO TENDER. HOLDERS OF SHARES MUST MAKE THEIR OWN DECISION AS TO WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND AT WHICH PRICES. Please address any inquiries you may have with respect to the tender offer to the dealer manager, or to the information agent, D. F. King & Co., Inc., at their respective addresses and telephone numbers set forth on the back cover page of the offer to purchase. You may obtain additional copies of the enclosed material from by calling them at: 1-888-887-1266. Capitalized terms used but not defined herein have the meanings assigned to them in the offer to purchase and the letter of transmittal. Very truly yours, TM Capital Corp. Enclosures NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON AN AGENT OF SYMS, THE DEALER MANAGER, THE INFORMATION AGENT, THE TRUSTEE FOR ANY SYMS PROFIT SHARING PLAN, OR THE DEPOSITARY OR ANY AFFILIATE OF THE FOREGOING, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE TENDER OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN. EX-99.(A)(1)(E) 6 c42320_ex99-a1e.txt EXHIBIT (a)(1)(E) OFFER TO PURCHASE FOR CASH UP TO 3,350,000 SHARES OF ITS COMMON STOCK AT A PURCHASE PRICE NOT GREATER THAN $18.00 NOR LESS THAN $16.00 PER SHARE BY SYMS CORP. - -------------------------------------------------------------------------------- THE TENDER OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FRIDAY, MAY 26, 2006, UNLESS SYMS CORP. EXTENDS THE TENDER OFFER. - -------------------------------------------------------------------------------- April 27, 2006 To Our Clients: Enclosed for your consideration are the offer to purchase, dated April 27, 2006, and the letter of transmittal, in connection with the tender offer by Syms Corp., a New Jersey corporation ("Syms"), to purchase up to 3,350,000 shares of its common stock, par value $0.05 per share (the "shares"). Pursuant to the offer to purchase and the letter of transmittal, which together (as each may be amended and supplemented from time to time) constitute the tender offer, Syms will purchase the shares at a price, specified by tendering stockholders, not greater than $18.00 nor less than $16.00 per share, net to the seller in cash, without interest, upon the terms and subject to the conditions set forth in the offer to purchase. Syms will, upon the terms and subject to the conditions of the tender offer, determine a single per share price, not greater than $18.00 nor less than $16.00 per share (the "Purchase Price"), that it will pay for shares properly tendered and not properly withdrawn pursuant to the terms of the tender offer, taking into account the number of shares so tendered and the prices specified by tendering stockholders. Syms will select the lowest Purchase Price that will allow it to purchase 3,350,000 shares, or such fewer number of shares as are properly tendered and not properly withdrawn, at prices not greater than $18.00 nor less than $16.00 per share, under the tender offer. All shares properly tendered before the expiration date (as specified in Section 1 of the offer to purchase) at prices at or below the Purchase Price and not properly withdrawn will be purchased by Syms at the Purchase Price, net to the seller in cash, without interest, upon the terms and subject to the conditions of the tender offer, including the "odd lot," proration and conditional tender provisions thereof. All shares tendered at prices in excess of the Purchase Price and all shares that Syms does not accept for purchase because of proration or conditional tenders will be returned at Syms's expense to the stockholders that tendered such shares as promptly as practicable after the expiration date. Syms expressly reserves the right, in its sole discretion, to purchase more than 3,350,000 shares under the tender offer, subject to applicable law. We are the owner of record of shares held for your account. As such, we are the only ones who can tender your shares, and then only pursuant to your instructions. We are sending you the letter of transmittal for your information only. You cannot use the letter of transmittal to tender shares we hold for your account. The letter of transmittal must be completed and executed by us, according to your instructions. PLEASE INSTRUCT US AS TO WHETHER YOU WISH US TO TENDER, ON THE TERMS AND SUBJECT TO THE CONDITIONS OF THE TENDER OFFER, ANY OR ALL OF THE SHARES WE HOLD FOR YOUR ACCOUNT, BY COMPLETING AND SIGNING THE INSTRUCTION FORM ENCLOSED HEREIN. Please note carefully the following: 1. You may tender shares at prices not greater than $18.00 nor less than $16.00 per share as indicated in the enclosed Instruction Form, net to you in cash, without interest. 2. You should consult with your broker and/or your tax advisor as to whether (and if so, in what manner) you should designate the priority in which you want your tendered shares to be purchased in the event of proration. 3. The tender offer is not conditioned upon any minimum number of shares being tendered. The tender offer is, however, subject to certain other conditions set forth in Section [7] of the offer to purchase, which you should read carefully. 4. The tender offer, the proration period and the withdrawal rights will expire at 5:00 p.m., New York City time, on May 26, 2006, unless Syms extends the tender offer. 5. The tender offer is for 3,350,000 shares, constituting approximately 22% of the shares outstanding as of April 26, 2006. 6. Tendering stockholders who are registered stockholders or who tender their shares directly to American Stock Transfer & Trust Company will not be obligated to pay any brokerage commissions or fees, solicitation fees, or (except as set forth in the offer to purchase and Instruction 9 to the letter of transmittal) stock transfer taxes on Syms's purchase of shares under the tender offer. 7. If you (i) own beneficially or of record an aggregate of fewer than 100 shares, (ii) instruct us to tender on your behalf ALL of the shares you own at or below the Purchase Price before the expiration date and (iii) check the box captioned "Odd Lots" in the attached Instruction Form, then Syms, upon the terms and subject to the conditions of the tender offer, will accept all of your tendered shares for purchase regardless of any proration that may be applied to the purchase of other shares properly tendered but not meeting the above conditions. 8. If you wish to condition your tender upon the purchase of all shares tendered or upon Syms's purchase of a specified minimum number of the shares that you tender, you may elect to do so and thereby avoid (in full or in part) possible proration of your tender. Syms's purchase of shares from all tenders which are so conditioned will be determined, to the extent necessary, by random lot. To elect such a condition complete the section captioned "Conditional Tender" in the attached Instruction Form. 9. If you wish to tender portions of your shares at different prices, you must complete a SEPARATE Instruction Form for each price at which you wish to tender each such portion of your shares. We must and will submit separate letters of transmittal on your behalf for each price you will accept. 10. THE BOARD OF DIRECTORS OF SYMS HAS APPROVED THE TENDER OFFER. HOWEVER, NEITHER SYMS NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO STOCKHOLDERS AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING THEIR SHARES FOR PURCHASE, OR AS TO THE PRICE OR PRICES AT WHICH STOCKHOLDERS SHOULD CHOOSE TO TENDER THEIR SHARES. STOCKHOLDERS MUST MAKE THEIR OWN DECISIONS AS TO WHETHER TO TENDER THEIR SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND THE PRICE OR PRICES AT WHICH THEY SHOULD TENDER SUCH SHARES. SYMS'S DIRECTORS [AND EXECUTIVE OFFICERS] HAVE ADVISED SYMS THAT THEY DO NOT INTEND TO TENDER ANY SHARES IN THE TENDER OFFER. If you wish to have us tender any or all of your shares, please instruct us to that effect by completing, executing, and returning to us the enclosed Instruction Form. A pre-addressed envelope is enclosed for your convenience. If you authorize us to tender your shares, we will tender all of the shares that we hold beneficially for your account unless you specify otherwise on the enclosed Instruction Form. Please forward your completed Instruction Form to us in a timely manner to give us ample time to permit us to submit the tender on your behalf before the expiration date of the tender offer. The tender offer, proration period and withdrawal rights will expire at 5:00 p.m., New York City time, on May 26, 2006, unless Syms extends the tender offer. As described in the offer to purchase, if more than 3,350,000 shares, or such greater number of shares as Syms may elect to purchase in accordance with applicable law, are properly tendered at or below the 2 Purchase Price and not properly withdrawn before the expiration date, then Syms will accept shares for purchase at the Purchase Price in the following order of priority: 1. First, Syms will purchase all shares properly tendered at or below the Purchase Price and not properly withdrawn before the expiration date by any "odd lot" holder who: (a) tenders ALL of the shares owned beneficially or of record by such odd lot holder at or below the Purchase Price before the expiration date (partial tenders will not qualify for this preference); AND (b) completes the section captioned "Odd Lots" on the letter of transmittal and, if applicable, on the notice of guaranteed delivery, without regard to any proration that would otherwise be applicable to such "odd lot" shares. 2. Second, after Syms has purchased all properly tendered (and not validly withdrawn) "odd lot" shares, Syms will purchase all other shares properly tendered at or below the Purchase Price before the expiration date (and not properly withdrawn) on a PRO RATA basis if necessary, subject to the conditional tender provisions described in Section 6 of the offer to purchase, and with adjustments to avoid purchases of fractional shares, all as provided in the offer to purchase. 3. Third, and only if necessary to permit Syms to purchase 3,350,000 shares (or such greater number of shares as Syms may elect to purchase subject to applicable law), Syms will purchase properly tendered shares from holders who have tendered shares conditionally (and for whom the condition was not initially satisfied) by random lot to the extent feasible. To be eligible for purchase by random lot, stockholders whose shares are conditionally tendered (and for whom the condition was not initially satisfied) must have tendered all of their shares. The tender offer is being made solely under the offer to purchase and the letter of transmittal and is being made to all record holders of shares. The tender offer is not being made to, nor will tenders be accepted from or on behalf of, holders of shares residing in any jurisdiction in which the making of the tender offer or acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. YOUR PROMPT ACTION IS REQUESTED. PLEASE FORWARD YOUR COMPLETED INSTRUCTION FORM TO US IN AMPLE TIME TO PERMIT US TO SUBMIT THE TENDER ON YOUR BEHALF BEFORE THE EXPIRATION OF THE TENDER OFFER. 3 INSTRUCTION FORM WITH RESPECT TO SYMS CORP. OFFER TO PURCHASE FOR CASH UP TO 3,350,000 SHARES OF ITS COMMON STOCK AT A PURCHASE PRICE NOT GREATER THAN $18.00 NOR LESS THAN $16.00 PER SHARE The undersigned acknowledge(s) receipt of your letter in connection with the tender offer by Syms Corp., a New Jersey corporation ("Syms"), to purchase up to 3,350,000 shares of its common stock, par value $.05 per share (the "shares"), at a price specified by the undersigned and not greater than $18.00 nor less than $16.00 per share, net to the seller in cash, without interest, upon the terms and subject to the conditions set forth in the enclosed offer to purchase, dated April 27, 2006 and the letter of transmittal, which together (as each maybe amended and supplemented from time to time) constitute the tender offer. The undersigned understands that Syms will, upon the terms and subject to the conditions of the tender offer, (i) determine a single per share price not greater than $18.00 nor less than $16.00 per share (the "Purchase Price") and (ii) purchase the shares properly tendered and not properly withdrawn under the tender offer, taking into account the number of shares so tendered and the prices specified by tendering stockholders. Syms will select the lowest Purchase Price that will allow it to purchase 3,350,000 shares, or such lesser number of shares as are properly tendered and not properly withdrawn, at prices not greater than $18.00 nor less than $16.00 per share under the tender offer. Syms will purchase all shares properly tendered at prices at or below the Purchase Price and not properly withdrawn at the Purchase Price, net to the seller in cash, without interest, upon the terms and subject to the conditions of the tender offer, including the odd lot, proration and conditional tender provisions described in the offer to purchase. All other shares, including shares tendered at prices in excess of the Purchase Price and shares that Syms does not accept for purchase because of proration or conditional tenders will be returned at Syms's expense to the stockholders that tendered such shares as promptly as practicable. The undersigned hereby instruct(s) you to tender to Syms the number of shares indicated below or, if no number is indicated, all shares you hold for the account of the undersigned, at the price per share indicated below, in accordance with the terms and subject to the conditions of the tender offer. NUMBER OF SHARES TO BE TENDERED BY YOU FOR THE ACCOUNT OF THE UNDERSIGNED: __________________ SHARES* * UNLESS YOU INDICATE OTHERWISE, WE WILL ASSUME THAT YOU ARE INSTRUCTING US TO TENDER ALL OF THE SHARES HELD BY US FOR YOUR ACCOUNT. 1 CHECK ONE AND ONLY ONE BOX. IF YOU CHECK MORE THAN ONE BOX, OR IF YOU DO NOT CHECK ANY BOX, YOU WILL HAVE FAILED TO VALIDLY TENDER ANY SHARES. SHARES TENDERED AT PRICE DETERMINED PURSUANT TO THE TENDER OFFER (SEE INSTRUCTION [5] OF THE LETTER OF TRANSMITTAL) |_| The undersigned wants to maximize the chance of having Syms purchase all shares the undersigned is tendering (subject to the possibility of proration). Accordingly, by checking this ONE box INSTEAD OF ONE OF THE PRICE BOXES BELOW, the undersigned hereby tenders shares and is willing to accept the purchase price determined by Syms pursuant to the tender offer (the "Purchase Price"). This action could result in receiving a price per share of as low as $16.00. -- OR -- SHARES TENDERED AT PRICE DETERMINED BY STOCKHOLDER (SEE INSTRUCTION [5]OF THE LETTER OF TRANSMITTAL) By checking ONE of the boxes below INSTEAD OF THE BOX ABOVE, the undersigned hereby tenders shares at the price checked. This action could result in none of the shares being purchased if the Purchase Price is less than the price checked below. A STOCKHOLDER WHO DESIRES TO TENDER SHARES AT MORE THAN ONE PRICE MUST COMPLETE A SEPARATE LETTER OF TRANSMITTAL FOR EACH PRICE AT WHICH THE STOCKHOLDER TENDERS SHARES. You cannot tender the same shares at more than one price, unless you have previously validly withdrawn those shares at a different price in accordance with Section [4] of the offer to purchase. PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED |_| $16.25 |_| $16.50 |_| $16.75 |_| $17.00 |_| $17.25 |_| $17.50 |_| $17.75 |_| $18.00 YOU WILL NOT HAVE VALIDLY TENDERED YOUR SHARES UNLESS YOU CHECK ONE AND ONLY ONE BOX ON THIS PAGE. 2 - -------------------------------------------------------------------------------- ODD LOTS (SEE INSTRUCTION [6] OF THE LETTER OF TRANSMITTAL) To be completed ONLY if shares are being tendered by or on behalf of a person owning, beneficially or of record, an aggregate of fewer than 100 shares. - --- --- |_| By checking this box, the undersigned represents that the undersigned owns beneficially or of record an aggregate of fewer than 100 shares and is instructing the holder to tender all such shares. - -------------------------------------------------------------------------------- IN ADDITION, THE UNDERSIGNED IS TENDERING SHARES EITHER (CHECK ONE BOX): - --- --- |_| at the Purchase Price, which will be determined by Syms in accordance with the terms of the tender offer (persons checking this box should check the first box on the previous page, under the heading "Shares Tendered at Price Determined Pursuant to the Tender Offer"); OR |_| at the price per share indicated on the previous page under "Price (in Dollars) Per Share at Which Shares Are Being Tendered." - -------------------------------------------------------------------------------- CONDITIONAL TENDER (SEE INSTRUCTION [12] OF THE LETTER OF TRANSMITTAL) A tendering stockholder may condition such stockholder's tender of any shares upon the purchase by Syms of a specified minimum number of the shares such stockholder tenders, as described in Section 6 of the offer to purchase. Unless Syms purchases at least the minimum number of shares you indicate below pursuant to the terms of the tender offer, Syms will not purchase any of the shares tendered below. It is the tendering stockholder's responsibility to calculate that minimum number, and we urge each stockholder to consult his or her own tax advisor in doing so. Unless you check the box immediately below and specify, in the space provided, a minimum number of shares that Syms must purchase if Syms purchases any shares, Syms will deem your tender unconditional. - --- --- |_| The minimum number of shares that Syms must purchase if Syms purchases any shares, is: _____________________ shares. - -------------------------------------------------------------------------------- If, because of proration, Syms will not purchase the minimum number of shares that you designate, Syms may accept conditional tenders by random lot, if necessary. However, to be eligible for purchase by random lot, the tendering stockholder must have tendered all of his or her shares. To certify that you are tendering all of the shares you own, check the box below. - --- --- |_| The tendered shares represent all shares held by the undersigned. THE METHOD OF DELIVERY OF THIS DOCUMENT IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER. IF DELIVERY IS BY MAIL, WE RECOMMEND REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED. IN ALL CASES, PLEASE ALLOW SUFFICIENT TIME TO ASSURE DELIVERY. -- PLEASE SIGN ON THE NEXT PAGE -- 3 - -------------------------------------------------------------------------------- SIGNATURE(S) OF STOCKHOLDER(S) Dated: ______________________________ , 2006 Name(s):________________________________________________________________________ (SIGN HERE) Name(s):________________________________________________________________________ (PLEASE PRINT) Capacity (full title): _________________________________________________________ Address: _______________________________________________________________________ PLEASE INCLUDE ZIP CODE (Area Code) Telephone Number: __________________________________________________ Taxpayer Identification or Social Security No.: ___________________________________________________________ - -------------------------------------------------------------------------------- EX-99.(A)(1)(F) 7 c42320_ex99-a1f.txt Exhibit (a)(1)(F) SYMS CORP. ANNOUNCES "DUTCH AUCTION" SELF-TENDER FOR 3,350,000 SHARES OF ITS COMMON STOCK SECAUCUS, New Jersey, April 27, 2006 - Syms Corp. (NYSE: SYM) announced today that its Board of Directors authorized the repurchase of up to 3,350,000 shares of its common stock, as such number may be increased by up to 2% of the outstanding shares, through a "Dutch Auction" self-tender offer at a price per share not less than $16.00 and not greater than $18.00. The tender offer is expected to commence on April 28, 2006 and will expire at 5:00 p.m., New York City time, on Friday, May 26, 2006, unless extended by the Company. The number of shares proposed to be purchased in the tender offer represents approximately 22% of the Company's currently outstanding shares. The purchase will be financed from available cash and from the Company's existing credit facility. The closing price per share of the Company's common stock on the New York Stock Exchange on April 26, 2006 was $16.86 per share. Syms' Board of Directors has authorized this tender offer as a prudent use of financial resources given Syms' business, assets and current stock price and as an efficient means to provide value to stockholders. Commenting on the tender offer, Marcy Syms observed that "this repurchase of shares by the Company, as distinguished from a cash dividend, is a way for the Company to return cash to our stockholders who elect to tender their shares, while enabling those who retain their shares to increase their proportionate ownership in the Company." Neither Syms nor its Board of Directors, dealer manager, depositary or information agent is making any recommendation to stockholders as to whether to tender or refrain from tendering their shares in the tender offer. Stockholders must decide how many shares they will tender, if any, and the price within the stated range at which they will offer their shares for purchase by Syms. Syms' directors, including Sy Syms and Marcy Syms, have advised the Company that they do not intend to tender any shares in the tender offer. If 3,350,000 shares are repurchased pursuant to the tender offer, the Syms family will then own approximately 67% of the Company's outstanding shares. The dealer manager for the tender offer is TM Capital Corp. and the information agent is D.F. King & Co., Inc. The depositary is American Stock Transfer & Trust Company. The Offer to Purchase and related documents are being mailed to stockholders of record and will be made available for distribution to beneficial owners of Syms' shares. For questions or information, please call the information agent at (888) 887-1266. This press release is for informational purposes only and is not an offer to buy or the solicitation of an offer to sell any share of Syms' common stock. The solicitation of offers to buy shares of Syms common stock will only be made pursuant to the Offer to Purchase and related materials that Syms will send to its stockholders shortly. Stockholders should read those materials carefully because they will be able to obtain the Offer to Purchase and related materials for free at the SEC website at http://www.sec.gov or from the information agent, D.F. King & Company, Inc. We urge stockholders to carefully read those materials prior to making any decision with respect to the tender offer. Syms Corp. currently operates a chain of thirty seven "off-price" apparel stores located throughout the Northeastern and Middle Atlantic regions and in the Midwest, Southeast and Southwest. Each Syms store offers a broad range of first quality, in-season merchandise bearing nationally recognized designer and brand-name labels. CERTAIN INFORMATION IN THIS PRESS RELEASE INCLUDES FORWARD-LOOKING STATEMENTS (AS SUCH TERM IS DEFINED IN THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995) AND INFORMATION RELATING TO THE COMPANY THAT ARE BASED ON THE BELIEFS OF THE MANAGEMENT OF THE COMPANY, AS WELL AS ASSUMPTIONS MADE BY AND INFORMATION CURRENTLY AVAILABLE TO THE MANAGEMENT OF THE COMPANY. WHEN USED IN THIS PRESS RELEASE, THE WORDS "ANTICIPATE", "BELIEVE", "ESTIMATE", "EXPECT", "INTEND", "PLAN" AND SIMILAR EXPRESSIONS AS THEY RELATE TO THE COMPANY, IDENTIFY FORWARD-LOOKING STATEMENTS. SUCH STATEMENTS REFLECT THE CURRENT VIEWS OF THE COMPANY WITH RESPECT TO FUTURE EVENTS, THE OUTCOME OF WHICH IS SUBJECT TO CERTAIN RISKS, INCLUDING, AMONG OTHERS, GENERAL ECONOMIC AND MARKET CONDITIONS, DECREASED CONSUMER DEMAND FOR THE COMPANY'S PRODUCT, POSSIBLE DISRUPTIONS IN THE COMPANY'S COMPUTER OR TELEPHONE SYSTEMS, POSSIBLE WORK STOPPAGES, OR INCREASE IN LABOR COSTS, EFFECTS OF COMPETITION, POSSIBLE DISRUPTIONS OR DELAYS IN THE OPENING OF NEW STORES OR INABILITY TO OBTAIN SUITABLE SITES FOR NEW STORES, HIGHER THAN ANTICIPATED STORE CLOSINGS OR RELOCATION COSTS, HIGHER INTEREST RATES, UNANTICIPATED INCREASES IN MERCHANDISE OR OCCUPANCY COSTS AND OTHER FACTORS WHICH MAY BE OUTSIDE THE COMPANY'S CONTROL. SHOULD ONE OR MORE OF THESE RISKS OR UNCERTAINTIES MATERIALIZE, OR SHOULD UNDERLYING ASSUMPTIONS PROVE INCORRECT, ACTUAL RESULTS OR OUTCOMES MAY VARY MATERIALLY FROM THOSE DESCRIBED HEREIN AS ANTICIPATED, BELIEVED, ESTIMATED, EXPECTED, INTENDED OR PLANNED. SUBSEQUENT WRITTEN AND ORAL FORWARD-LOOKING STATEMENTS ATTRIBUTABLE TO THE COMPANY OR PERSONS ACTING ON ITS BEHALF ARE EXPRESSLY QUALIFIED IN THEIR ENTIRETY BY THE CAUTIONARY STATEMENTS IN THIS PARAGRAPH. CONTACT: - -------- ANTONE F. MOREIRA - SYMS CORP VICE PRESIDENT, TREASURER AND CHIEF FINANCIAL OFFICER 201-902-9600 EX-99.(A)(1)(G) 8 c42320_ex99-a1g.txt EXHIBIT (a)(1)(G) Syms Corp. Syms Way Secaucus, New Jersey 07094 April 27, 2006 To Our Stockholders: Syms Corp. (the "Company") is offering to purchase up to 3,350,000 shares of its common stock at a purchase price not greater than $18.00 nor less than $16.00 per share, net to you in cash, without interest. The Company is conducting the tender offer through a procedure commonly referred to as a modified "Dutch Auction." This procedure allows you to select the price within the $18.00 to $16.00 range at which you are willing to sell all or a portion of your shares of common stock to the Company. On April 26, 2006, the last trading day prior to commencement of the tender offer, the last reported sale price of our shares of common stock on the New York Stock Exchange was $16.86 per share. Based on the number of shares of common stock tendered and the prices specified by the tendering stockholders, the Company will determine a single per share price within the $18.00 to $16.00 range that will allow it to buy 3,350,000 shares, as such number may be increased by up to 2% of the outstanding shares in our discretion (or such lesser number of shares that are properly tendered and not properly withdraw). We will purchase the shares that are properly tendered at or below that purchase price (and are not properly withdrawn), subject to possible proration and provisions relating to the tender of "odd lots" and conditional tenders, for cash at that purchase price, net to the selling stockholder. The tender offer is scheduled to expire at 5:00 p.m., New York City time, on May 26, 2006, unless we extend it. If you do not wish to participate in the tender offer, you do not need to take any action. The tender offer is explained in detail in the enclosed Offer to Purchase and related Letter of Transmittal. If you wish to tender your shares, instructions on how to tender shares are provided in the enclosed materials. I ENCOURAGE YOU TO READ THESE MATERIALS CAREFULLY BEFORE MAKING ANY DECISION WITH RESPECT TO THE TENDER OFFER. NEITHER THE COMPANY NOR ANY MEMBER OF ITS BOARD OF DIRECTORS, NOR THE DEALER MANAGERS OR THE INFORMATION AGENT MAKES ANY RECOMMENDATIONS TO YOU AS TO WHETHER YOU SHOULD TENDER OR REFRAIN FROM TENDERING YOUR SHARES OR AS TO THE PURCHASE PRICE OR PURCHASE PRICES AT WHICH YOU MAY CHOOSE TO TENDER YOUR SHARES. YOU MUST MAKE YOUR OWN DECISION AS TO WHETHER TO TENDER YOUR SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND THE PURCHASE PRICE OR PURCHASE PRICES AT WHICH YOUR SHARES SHOULD BE TENDERED. IN DOING SO, YOU SHOULD READ CAREFULLY THE INFORMATION IN THE OFFER TO PURCHASE AND IN THE RELATED LETTER OF TRANSMITTAL, INCLUDING OUR REASONS FOR MAKING THE TENDER OFFER. YOU SHOULD ALSO DISCUSS WHETHER TO TENDER YOUR SHARES WITH YOUR BROKER OR OTHER FINANCIAL OR TAX ADVISOR. THE COMPANY'S DIRECTORS HAVE INDICATED THAT THEY DO NOT INTEND TO TENDER ANY OF THEIR SHARES IN THE TENDER OFFER, AS MORE SPECIFICALLY DISCUSSED IN SECTION 11 OF THE OFFER TO PURCHASE. Any stockholder whose shares are properly tendered directly to American Stock Transfer & Trust Company, the depository for the tender offer, and purchased in the tender offer, will not incur the usual transaction costs associated with open market sales. If you hold shares through a broker or bank, you should consult your broker or bank to determine whether any transaction costs are applicable. If you own fewer than 100 shares, the tender offer is an opportunity for you to sell your shares without having to pay "odd lot" discounts. If you have any questions regarding the tender offer or need assistance in tendering your shares, please contact D.F. King & Co., Inc., the information agent for the tender offer, at (888) 887-1266. Very truly yours, Marcy Syms Chief Executive Officer and President EX-99.(B)(3) 9 c42320_ex99b3.txt SECOND AMENDMENT TO LOAN AGREEMENT This is the Second Amendment (the "Second Amendment") dated as of April 20, 2006 to the Loan Agreement dated as of November 5, 2003 between Israel Discount Bank of New York (hereinafter referred to as "Lender"), a New York bank, having an office at 511 Fifth Avenue, New York, New York 10036 and Syms Corp. (hereinafter referred to as "Borrower"), a New Jersey corporation, with its principal office located at One Syms Way, Seacaucus, New Jersey 07094, as amended from time to time (the "Loan Agreement"). All capitalized terms that are not defined herein shall have the meanings ascribed to them in the Loan Agreement. WHEREAS, Lender and Borrower wish to supplement and amend the Loan Agreement as of the date hereof (the "Effective Date") by modifying certain financial covenants and other terms and conditions of the Loan Agreement to allow the Borrower, on a one time basis, to draw up to $15,000,000 (the "Initial Drawing") under the credit facility to repurchase certain of the Borrower's outstanding stock (the "Stock Repurchase"); and WHEREAS, the Borrower has requested and the Lender has agreed to allow the Borrower, on a one time basis, to draw in addition to the Initial Drawing up to $13,000,000 (the "Additional Drawing") under the credit facility if the Borrower does not have sufficient cash on hand to complete the Stock Repurchase. NOW, THEREFORE, it is agreed as follows that as of the Effective Date: 1. Section 5.3.1 of the Loan Agreement related to Working Capital is hereby deleted in its entirety and replaced with the following "WORKING CAPITAL. Maintain as of the end of each fiscal quarter for Borrower, Working Capital of no less than $35,000,000. Notwithstanding the foregoing, in the event the Borrower requests the Additional Drawing, as of the Effective date through June 30, 2006, the Borrower covenants and agrees that it shall maintain Working Capital of no less than $35,000,000 less the amount of the Additional Drawing." 2. Section 5.3.3 of the Loan Agreement related to Consolidated Tangible Net Worth is hereby amended by deleting reference to the amount of "$180,000,000" and inserting in its place and stead the amount of "$150,000,000": 3. Section 5.3.4 of the Loan Agreement related to Capital Expenditures is hereby deleted in its entirety and replaced with the following: "CAPITAL EXPENDITURES. Not permit the sum of Borrower's Capital Expenditures plus Dividends minus Net Proceeds to exceed (i) $55,000,000 for the 2006-2007 fiscal year of the Borrower and (ii) for each fiscal year thereafter, $15,000,000 plus the Carry Forward Amount. 1 "Carry Forward Amount" shall mean, for any fiscal year of the Borrower, the excess, if any, of $15,000,000 over the aggregate amount of Capital Expenditures for the immediately preceding fiscal year. For the purposes of this Section the purchase price paid by Borrower for the Stock Repurchase shall be deemed a Capital Expenditure." 4. Section 5.3.5 of the Loan Agreement related to Net Operating Loss is hereby amended by deleting reference to the amount "$8,000,000" and inserting in its place and stead the amount of "4,000,000." 5. The following paragraph is hereby added to the Loan Agreement. "8.15 CONDITIONS SUBSEQUENT. In the event the Borrower requests the Additional Drawing, then within thirty (30) days following the date of such Additional Drawing, the Lender shall have received, in form and substance satisfactory to Lender and its counsel, a certificate signed by a senior executive officer of Borrower stating that the amount of the Additional Drawing has been repaid in full, together with such other documentation as Lender shall reasonably require evidencing the same." 6. The obligations of Lender under this Second Amendment and the Loan Agreement are subject to the following conditions precedent, all of which shall be performed or satisfied in a manner in form and substance reasonably satisfactory to Lender and its counsel: a. The Lender shall have received certified (as of the Effective Date) copies of the resolutions of the board of directors of the Borrower authorizing and approving this Second Amendment; b. The Lender shall have received a certificate signed by the President, Vice President or Chief Financial Officer of the Borrower dated as of the Effective Date, stating that: i. The representations and warranties contained in this Second Amendment and in the Loan Documents are true and correct in all material respects on and as of such date; ii. No Default or Event of Default has occurred and is continuing, or would result from the making of this Second Amendment; c. The Lender shall have received payment of the reasonable legal fees and expenses of the Lender's counsel; d. The Lender shall have received payment of an extension fee in the amount of $37,500. which the Borrower acknowledges shall have been earned by the Lender in connection with the transactions contemplated hereby. 7. All terms and conditions of the Loan Agreement, except as modified by this agreement are hereby affirmed and ratified. 2 8. The Loan Agreement, together with this Second Amendment, embodies the entire agreement and understanding between the Lender and the Borrower and supersedes all prior agreements and understandings relating to the subject matter hereof. 9. This Second Amendment shall be governed and construed in accordance with the laws of the State of New York. 10. No modification or waiver of or with respect to any provision of this Second Amendment and all other agreements, instruments and documents delivered pursuant hereto or thereto, nor consent to any departure by the Lender from any of the terms or conditions thereof, shall in any event be effective unless it shall be in writing and executed in accordance with the provisions of the Loan Agreement, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No consent to or demand on the Borrower or any Guarantor in any case shall, of itself, entitle it, him or her to any other or further notice or demand in similar or other circumstances. 11. The provisions of this Second Amendment are severable, and if any clause or provision shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision, or part thereof, in such jurisdiction and shall not in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision in this Second Amendment in any jurisdiction. 12. This Second Amendment may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument. 13. This Second Amendment shall be binding upon and inure to the benefit of the Borrower and its successors and to the benefit of the Lender and its successors and assigns. The rights and obligations of the Borrower under this Second Amendment shall not be assigned or delegated without the prior written consent of the Lender, and any purported assignment or delegation without such consent shall be void. 3 IN WITNESS WHEREOF, the parties have set their hands hereto the day and the year first above written. SYMS CORP. By: /s/ Marcy Syms ----------------------------- Name: Marcy Syms Title: Chief Executive Office and President ISRAEL DISCOUNT BANK OF NEW YORK By: /s/ Terry S. Schwartz ----------------------------- Name: Terry S. Schwartz Title: First Vice President By: /s/ Alfred J. Franco ----------------------------- Name: Alfred J. Franco Title: First Vice President 4 -----END PRIVACY-ENHANCED MESSAGE-----