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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRANS WORLD ENTERTAINMENT
CORPORATION
(Exact name of registrant as specified in its charter)
New York 14-1541629
(State or other (I.R.S. Employer
jurisdiction of incorporation) Identification Number)
38 Corporate Circle
Albany, New York 12203
(518) 452-1242
(Address of principal executive offices)
TRANS WORLD ENTERTAINMENT CORPORATION
1994 STOCK OPTION PLAN
(Full title of the plan)
Robert J. Higgins
President
Trans World Entertainment Corporation
38 Corporate Circle
Albany, New York 12203
(Name and address of agent for service)
(518) 452-1242
(Telephone number, including area code, of agent for service)
Copies to:
Matthew H. Mataraso, Esq.
111 Washington Avenue
Albany, New York 12210
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
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Common Stock, 1,000,000 $4.0625 (2) $4,062,500 (3) $1,401 (3)
par value shares (1)
$.01 per share
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(1) Represents the maximum number of shares as to which options may be granted
under the Trans World Entertainment Corporation 1994 Stock Option Plan.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933 based upon the average of
the high and low prices reported on the National Association of Securities
Dealers, Inc. Automated Quotation System on May 9, 1995.
(3) Calculated pursuant to Rule 457(h)(1) under the Securities Act of 1933
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This document consists of 12 pages
Index to Exhibits appears on page 9
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not required to be filed with the Securities and Exchange Commission (the
"Commission") pursuant to Form S-8 adopted under the Securities Act of 1933,
as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to shares of common stock, par
value $.01 per share (the "Common Stock"), of Trans World Entertainment
Corporation (the "Company" or the "Registrant") issuable upon the exercise of
options granted from time to time pursuant to the Trans World Entertainment
Corporation 1994 Stock Option Plan (the "Plan") to eligible employees of the
Company or its subsidiaries, including employees who are Directors of the
Company. Upon effectiveness of this Registration Statement, an aggregate of
up to 1,000,000 shares of Common Stock will be issuable upon the exercise of
options granted pursuant to the Plan, subject to adjustment in the case of
stock dividends or changes in the Common Stock.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
As required by the Commission, the Company hereby incorporates by
reference into this Registration Statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
January 28, 1995, filed with the Commission pursuant to the requirements of
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year covered by such
Annual Report and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities have been sold or
which deregisters all securities then remaining unsold; and
(c) The description of the Company's Common Stock that is contained in
the registration statement filed by the Company to register such securities
under Section 12 of the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
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ITEM 4. DESCRIPTION OF SECURITIES
The class of securities offered is registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
(a) Certain legal matters in connection with this Registration
Statement are being passed upon by Matthew H. Mataraso, Esq., 111 Washington
Avenue, Albany, New York 12210. Mr. Mataraso, Secretary of the Company, owns
4,500 shares of the Company's Common Stock and has options to acquire an
additional 35,000 shares of Common Stock at an average exercise price per
share of $16.50.
(b) The consolidated financial statements of the Company appearing in
the Company's Annual Report on Form 10-K for the fiscal year ended January 28,
1995, have been audited by KPMG Peat Marwick LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon the report of KPMG Peat Marwick LLP given upon the
authority of such firm as experts in accounting and auditing.
The consolidated financial statements of the Company at January 29,
1994 and for each of the two years in the period ended January 29, 1994
appearing in the Company's Annual Report on Form 10-K for the fiscal year
ended January 28, 1995, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 722 of the New York Business Corporation Law (the "BCL")
provides that a corporation may indemnify an officer or director, in the case
of third party actions, against judgments, fines, amounts paid in settlement
and reasonable expenses and, in the case of derivative actions, against
amounts paid in settlement and reasonable expenses, if the director or officer
"acted, in good faith, for a purpose which he reasonably believed to be in ...
the best interests of the corporation" and, in the case of criminal actions,
"had no reasonable cause to believe that his conduct was unlawful." Statutory
indemnification may not be provided in derivative actions in respect of a
threatened action, or a pending action which is settled or otherwise disposed
of, or any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation, unless and only to the extent that
the court in which the action was brought, or, if no action was brought, any
court of competent jurisdiction, determines upon application that, in view of
all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such portion of the settlement and expenses as the
court deems proper.
As contemplated by BCL Section 721, the Company's By-Laws, as amended
on March 31, 1987, provide a broader basis for indemnification in accordance
with and as permitted by BCL Article 7.
Section 6.6 of the By-Laws of the Company provides as follows:
"Section 6.6 Indemnification.
"Except to the extent expressly prohibited by the New York Business
Corporation Law, the Corporation shall indemnify each person made or
threatened to be made a party to any action or proceedings, whether
civil or criminal, by reason of the fact that such person or such
person's testator or intestate is or was a director or officer of the
Corporation, or serves or served at the request of the Corporation any
other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise in any capacity, against judgments, fines,
penalties, amounts paid in settlement and reasonable expenses,
including attorney's fees, incurred in connection with such action or
proceedings, or any appeal therein, provided that no such
indemnification shall be made if a judgment or other final
adjudication adverse to such person establishes that his or her acts
were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action as
adjudicated, or that he or she personally gained in fact a financial
profit or other advantage to which he or she was not legally entitled,
and provided further that no such indemnification shall be required
with respect to any settlement or other nonadjudicated disposition of
any threatened or pending action or proceedings unless the Corporation
has given its prior consent to such settlement or other disposition.
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"The Corporation shall advance or promptly reimburse upon request any
person entitled to indemnification hereunder for all expenses,
including attorney's fees, reasonably incurred in defending any action
or proceeding in advance of the final disposition thereof upon receipt
of an undertaking by or on behalf of such person to repay such amount
if such person is ultimately found not to be entitled to
indemnification or, where indemnification is granted, to the extent
the expenses so advanced or reimbursed exceed the amount to which such
person is entitled, provided, however, that such person shall
cooperate in good faith with any request by the Corporation that
common counsel be utilized by the parties to an action or proceeding
who are similarly situated unless to do so would be inappropriate due
to actual or potential differing interests between or among such
parties.
"Nothing herein shall limit or affect any right of any person
otherwise than hereunder to indemnification or expenses, including
attorneys' fees, under any statute, rule, regulation, certificate of
incorporation, by-law, insurance policy, contract or otherwise.
"Anything in these by-laws to the contrary notwithstanding, no
elimination of this by-law, and no amendment of this by-law adversely
affecting the right of any person to indemnification or advancement of
expenses hereunder shall be effective until the 60th day following
notice to such person of such action, and no elimination of or
amendment to this by-law shall deprive any person of his or her rights
hereunder arising out of alleged or actual occurrences, acts or
failures to act prior to such 60th day.
"The Corporation shall not, except by elimination or amendment of this
by-law in a manner consistent with the preceding paragraph, take any
corporate action or enter into any agreement which prohibits, or
otherwise limits the rights of any person to, indemnification in
accordance with the provisions of this by-law. The indemnification of
any person provided by this by-law shall continue after such person
has ceased to be a director, officer or employee of the Corporation
and shall inure to the benefit of such person's heirs, executors,
administrators and legal representatives.
"The Corporation is authorized to enter into agreements with any of
its directors, officers or employees extending rights to
indemnification and advancement of expenses to such person to the
fullest extent permitted by applicable law, but the failure to enter
into any such agreement shall not affect or limit the rights of such
person pursuant to this by-law, it being expressly recognized hereby
that all directors, officers and employees of the Corporation, by
serving as such after the adoption hereof, are acting in reliance
hereon and that the Corporation is estopped to contend otherwise.
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"In case any provision in this by-law shall be determined at any time
to be unenforceable in any respect, the other provisions shall not in
any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances,
it being the intention of the Corporation to afford indemnification
and advancement of expenses to its directors, officers and employees,
acting in such capacities or in the other capacities mentioned herein,
to the fullest extent permitted by law.
"For purposes of this by-law, the Corporation shall be deemed to have
requested a person to serve an employee benefit plan where the
performance by such person of his or her duties to the Corporation
also imposes duties on, or otherwise involves services by, such person
to the plan or participants or beneficiaries of the plan, and excise
taxes assessed on a person with respect to an employee benefit plan
pursuant to applicable law shall be considered indemnifiable expenses.
For purposes of this by-law, the term "Corporation" shall include any
legal successor to the Corporation, including any corporation which
acquires all or substantially all of the assets of the Corporation in
one or more transactions."
In addition, pursuant to Section 721 of the BCL, the Company has
entered into Indemnification Agreements with certain of its officers and
directors providing for the indemnification of such officers and directors to
the fullest extent permitted by the BCL. The Indemnification Agreements,
among other things, provide for the establishment of procedures for the
advancement of expenses prior to the final disposition of an action,
procedures for determining entitlement to indemnification in the event of a
change of control of the Company and procedures for resolving disputes in the
event the Company refuses to provide indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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ITEM 9. UNDERTAKINGS
The undersigned Registrant 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,
represent a fundamental change in the information set forth in the
Registration Statement to the extent that such information required to be
included by clauses (i) or (ii) is not contained in periodic reports filed by
the Company pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference into this Registration Statement; and
(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.
(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 post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(4) That for the purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant 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
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant 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 registrant 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 governed by the final adjudication of such issue.
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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 State of New York on May 12, 1995.
TRANS WORLD ENTERTAINMENT CORPORATION
By: /s/Robert J. Higgins
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Robert J. Higgins
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Robert J. Higgins and Matthew H.
Mataraso, and each of them acting individually, as his attorney-in-fact, each
with full power of substitution, for him in any and all capacities, to sign
any and all amendments and post-effective amendments to this Registration
Statement, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, and is
hereby ratifying and confirming our signatures as they may be signed by our
said attorney to any and all amendments and post-effective amendments to said
Registration Statement.
Pursuant to the requirements of the Securities act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
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/s/Robert J. Higgins Chairman of the Board, May 12, 1995
Robert J. Higgins President, Chief Executive
Officer and Director
(Principal Executive Officer)
/s/John J. Sullivan Senior Vice President-Finance May 12, 1995
John J. Sullivan (Principal Financial and Chief
Accounting Officer)
/s/Matthew H. Mataraso Secretary and Director May 12, 1995
Matthew H. Mataraso
/s/George W. Dougan Director May 12, 1995
George W. Dougan
/s/Charlotte G. Fischer Director May 12, 1995
Charlotte G. Fischer
/s/Isaac Kaufman Director May 12, 1995
Isaac Kaufman
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INDEX TO EXHIBITS
Exhibit Page
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3.1 Restated Certificate of Incorporation N/A
(incorporated herein by reference to Exhibit
3.1 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended January
29, 1994. (File 0-14818)).
3.2 Certificate of Amendment of the Restated N/A
Certificate of Incorporation (incorporated
herein by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended October 29,
1994. (File 0-14818)).
4.1 Trans World Entertainment Corporation 1994 N/A
Stock Option Plan (incorporated herein by
reference to Exhibit 10.1 to the
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended July 30, 1994.
(File 0-14818)).
5.1 Opinion of Matthew H. Mataraso, Esq. 10
regarding legality of securities being
registered.
23.1 Consent of KPMG Peat Marwick LLP. 11
23.2 Consent of Ernst & Young LLP. 12
23.3 Consent of Matthew H. Mataraso, Esq. - 10
contained in the opinion filed as Exhibit
5.1.
24.1 Power of Attorney - see signature page. 8
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[DESCRIPTION] Legal Opinion and Consent
May 12, 1995
Trans World Entertainment Corporation
38 Corporate Circle
Albany, New York 12203
Ladies and Gentlemen:
I have acted as counsel to Trans World Entertainment Corporation, a
New York corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, with respect to up to 1,000,000 shares
(the "Shares") of Common Stock, par value $.01 per share, of the Company
reserved for issuance under the Company's 1994 Stock Option Plan (the "Plan").
It is my opinion that the Shares have been duly authorized and, when
issued pursuant to the Plan upon the exercise of stock options in the manner
contemplated by the Plan against receipt of the exercise price therefor
(assuming that the exercise price of the stock options underlying such Shares
will not be less than the par value of such Shares), will be validly issued,
fully paid and nonassessable.
This opinion is limited to federal law and the laws of the State of
New York. I have assumed that there will be no changes in applicable law
between the date of this opinion and the issuance of the Shares upon the
exercise of the stock options granted pursuant to the Plan.
I hereby consent to the use of my name under the caption "Legal
Matters" and the filing of this opinion with the Commission as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Matthew H. Mataraso
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[DESCRIPTION] Consent of Independent Auditors
Exhibit 23.1
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Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement of
Trans World Entertainment Corporation on Form S-8 pertaining to the 1994 Stock
Option Plan of our report dated March 24, 1995, with respect to the
consolidated financial statements of Trans World Entertainment Corporation
included in the Annual Report on Form 10-K for the year ended January 28,
1995.
We also consent to the reference to our firm under the heading "Experts" in
the Registration Statement.
/s/KPMG Peat Marwick LLP
Albany, New York
May 10, 1995
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[DESCRIPTION] Consent of Independent Auditors
Exhibit 23.2
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Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-8 pertaining to the Trans World Entertainment
Corporation 1994 Stock Option Plan and to the incorporation by reference
therein of our report dated March 24, 1994, with respect to the consolidated
financial statements of Trans World Entertainment Corporation included in its
Annual Report (Form 10-K) for the year ended January 28, 1995, filed with
the Securities and Exchange Commission.
/s/Ernst & Young LLP
Syracuse, New York
May 10, 1995
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