S-8 1 0001.txt FORM S-8 Registration No. 333- -------- As filed with the Securities and Exchange Commission on June 30, 2000 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------ FORM S-8 Registration Statement Under The Securities Act of 1933 FACTORY 2-U STORES, INC. ---------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 51-0299573 -------------------------------------- ------------------- (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) 4000 Ruffin Road, San Diego, California 92123 --------------------------------------- ------------------- (Address of Principal Executive Offices) (Zip Code) 1997 Stock Option Plan ------------------------------------------------------ (Full title of the plan) Michael M. Searles Factory 2-U Stores, Inc. (858) 627-1800 ------------------------------------------------------ (Name, address and telephone number of agent for service) Copy to: Theodore H. Latty, Esq. Hughes Hubbard & Reed LLP 350 South Grand Avenue Los Angeles, California 90071-3442 CALCULATION OF REGISTRATION FEE
Title of Securities Amount Proposed Maximum Proposed Amount of to be to be Offering Price Maximum Aggregate Registration Registered Registered Per Share Offering Price Fee ---------------------- ------------------ ---------------------- -------------------- ----------------- Common Stock, par value 350,000 shares $37.41 $13,093,500 $3,457 $.001 per share ---------------------- ------------------ ---------------------- -------------------- ----------------- (see footnotes on following page) Page 1 of 13 Pages.
---------- This Registration Statement also relates to such indeterminate number of additional shares as may be issuable pursuant to stock splits, stock dividends or similar transactions. The proposed maximum offering price per share of Common Stock and the proposed maximum aggregate offering price are calculated solely for the purpose of determining the registration fee pursuant to Rule 457(h) under the Securities Act of 1933. The fee for the shares being registered is based on a price of $37.41 per share, which is the average of the high and low sale prices of the Common Stock on June 26, 2000, as quoted on the Nasdaq National Market. Securities offered and sold under the plan which are the subject of this Registration Statement were also registered by means of a Registration Statement on Form S-8, No. 33-76011, filed with the Securities and Exchange Commission on April 9, 1999. Prospectus documents used in connection with this Registration Statement will also apply with respect to the prior Registration Statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by Factory 2-U Stores, Inc. (the "Company") under the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the fiscal year ended January 29, 2000; (b) The Company's Quarterly Report on Form 10-Q for the fiscal period ended April 29, 2000; (c) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since April 29, 2000; and (d) The description of the Company's Common Stock contained in the Company's Registration Statement filed with the SEC under the Exchange Act and subsequent amendments and reports filed to update such description. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in a subsequently filed document which is also incorporated by reference herein modified or superseded such statement. Item 4. DESCRIPTION OF SECURITIES Not applicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Company's Certificate of Incorporation provides for indemnification of directors and officers, among other things, in instances in which they acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of the Company, and in which, with respect to criminal proceedings, they had no reason to believe that the conduct was unlawful. Directors and officers may also be entitled to additional indemnification under Section 145 of the General Corporation Law of Delaware. Item 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. Item 8. EXHIBITS
NUMBER DESCRIPTION METHOD OF FILING ------ ----------- ---------------- 4.1 Certificate of Incorporation of the Incorporated by reference to the Company Company's Registration Statement on Form S-4, No. 333-65685, filed October 14, 1998
NUMBER DESCRIPTION METHOD OF FILING ------ ----------- ---------------- 4.2 Bylaws of the Company Incorporated by reference to the Company's Registration Statement on Form S-1, No. 33-77488, filed April 7, 1994 4.3 1997 Stock Option Plan, as amended Filed herewith 5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith 23.1 Consent of Arthur Andersen LLP Filed herewith 23.2 Consent of Hughes Hubbard & Reed LLP Contained in Exhibit 5.1 24.1 Powers of Attorney Filed herewith
Item 9. UNDERTAKINGS (a) The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represents a fundamental change in the information set forth in the Registration Statement; (iii)To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on this 27th day of June, 2000. FACTORY 2-U STORES, INC. By: /S/ MICHAEL M. SEARLES ----------------------------- Michael M. Searles Chairman of the Board Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on this 27th day of June, 2000.
SIGNATURE CAPACITY /S/ MICHAEL M. SEARLES President, Chief Executive Officer and ---------------------------------------- Director (Principal Executive Officer) Michael M. Searles /S/ DOUGLAS C. FELDERMAN Executive Vice President (Principal ---------------------------------------- Financial and Accounting Officer) Douglas C. Felderman /S/ PETER V. HANDAL Director ---------------------------------------- Peter V. Handal /S/ IRA NEIMARK Director ---------------------------------------- Ira Neimark /S/ RONALD RASHKOW Director ---------------------------------------- Ronald Rashkow
SIGNATURE CAPACITY /S/ H. WHITNEY WAGNER Director ---------------------------------------- H. Whitney Wagner /S/ WM. ROBERT WRIGHT II Director ---------------------------------------- Wm. Robert Wright II
EXHIBIT INDEX
NUMBER DESCRIPTION METHOD OF FILING PAGE ------ ----------- ---------------- ---- 4.1 Certificate of Incorporation of Incorporated by reference to the -- the Company Company's Registration Statement on Form S-4, No. 333-65685, filed October 14, 1998 4.2 Bylaws of the Company Incorporated by reference to the -- Company's Registration Statement on Form S-1, No. 33-77488, filed April 7, 1994 4.3 1997 Stock Option Plan, as Filed herewith 11 amended 5.1 Opinion of Hughes Hubbard & Filed herewith 20 Reed LLP 23.1 Consent of Arthur Andersen LLP Filed herewith 21 23.2 Consent of Hughes Hubbard & Contained in Exhibit 5.1 -- Reed LLP 24.1 Powers of Attorney Filed herewith 22