As filed with the Securities and Exchange Commission on June 28, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TRANS WORLD ENTERTAINMENT CORPORATION
(Exact name of registrant as specified in its charter)
New York 14-1541629
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
38 Corporate Circle, Albany, New York 12203
(Address of principal executive offices) (Zip Code)
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Trans World Entertainment Corporation 1998 Stock Option Plan
Trans World Entertainment Corporation 1999 Stock Option Plan
(Full title of the plans)
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Robert J. Higgins
President, Chief Executive Officer
and Chairman of the Board of Directors
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)
With copies to:
William M. Hartnett, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate Amount of
securities to be registered registered (1) per share (2) offering registration fee
price (2)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, par value $.01 per 4,500,000 $10.625 $47,812,500 $13,291.88
share
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</TABLE>
(1) Plus such indeterminate number of shares pursuant to Rule 416 under the
Securities Act of 1933 as may be issued in respect of stock splits, stock
dividends and similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, the
registration fee has been calculated on the basis of the average of the
high and low prices of Trans World common stock on June 24, 1999, which was
$10.625 per share, as reported on the Nasdaq Stock Market, Inc.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Part I of Form S-8 is not being filed with or
included in this Registration Statement in accordance with Rule 428 under the
Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which are on file with the Securities and Exchange
Commission, are incorporated by reference in this Registration Statement:
(a) Trans World's Annual Report on Form 10-K for the year ended
January 30, 1999 filed on April 30, 1999.
(b) The following reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since January 30, 1999:
o Trans World's Quarterly Report on Form 10-Q for the quarter ended
May 1, 1999 filed on June 15, 1999;
o Trans World's Current Report on Form 8-K filed on June 11, 1999;
o Trans World's Current Report on Form 8-K/A filed on May 11, 1999;
and
o Trans World's Current Report on Form 8-K filed on April 23, 1999.
(c) The description of Trans World's common stock contained in Trans
World's Registration Statement on Form 8-A filed on July 21, 1986 pursuant
to Section 12 of the Securities Exchange Act of 1934, as updated by Trans
World's Registration Statement on Form S-4 (Registration No. 333-75231)
filed on March 29, 1999, as amended by Amendment No. 1 on Form S-4/A filed
on March 30, 1999.
All documents subsequently filed by Trans World pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the filing of
a post-effective amendment which indicates that all securities offered 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 part
hereof from the date of filing of such documents.
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Any statement contained in this Registration Statement or in a document
incorporated or deemed to be incorporated by reference in this Registration
Statement shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in any
subsequently filed document which also is or is deemed to be incorporated by
reference in this Registration Statement modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration 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.
Section 722 of the New York Business Corporation Law 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 Section 721 of the New York Business Corporation Law, Trans
World's By-Laws, as amended, provide a broader basis for indemnification in
accordance with and as permitted by Article 7 of the New York Business
Corporation Law.
Section 6.6 of Trans World's By-Laws 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.
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
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<PAGE>
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.
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."
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed in the Index to Exhibits are filed as a part of this
Registration Statement.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
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(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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 clauses (a)(1)(i) and (a)(1)(ii) above do not apply
if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
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 undersigned registrant hereby undertakes that, for 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.
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 Securities Act
of 1933 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 Securities
Act of 1933 and will be 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 City of Albany, State of New York, on June 28, 1999.
TRANS WORLD ENTERTAINMENT CORPORATION
By: /s/ JOHN J. SULLIVAN
----------------------------------------
John J. Sullivan
Senior Vice President-Finance, Chief
Financial Officer and Treasurer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Robert J. Higgins and John J. Sullivan,
and each of them singly, such person's true and lawful attorney-in-fact and
agent with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this Registration Statement,
and to file the same, with all exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission under the
Securities Act of 1933, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary fully to all intents and purposes as he might or
could do in person, thereby ratifying and confirming all that said
attorney-in-fact and agents of any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ ROBERT J. HIGGINS Chairman of the Board, President, June 28, 1999
- --------------------------------------- Chief Executive Officer and Director
(Robert J. Higgins)
/s/ JOHN J. SULLIVAN Senior Vice President-- Finance, June 28, 1999
- --------------------------------------- Chief Financial Officer and Treasurer(*)
(John J. Sullivan)
/s/ MATTHEW H. MATARASO Secretary and Director June 28, 1999
- ---------------------------------------
(Matthew H. Mataraso)
/s/ DEAN S. ADLER Director June 28, 1999
- ---------------------------------------
(Dean S. Adler)
- ----------
* Chief accounting and principal financial officer.
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Signature Title Date
/s/ GEORGE W. DOUGAN Director June 28, 1999
- ---------------------------------------
(George W. Dougan)
/s/ CHARLOTTE G. FISCHER Director June 28, 1999
- ---------------------------------------
(Charlotte G. Fischer)
/s/ MARTIN E. HANAKA Director June 28, 1999
- ---------------------------------------
(Martin E. Hanaka)
/s/ ISAAC KAUFMAN Director June 28, 1999
- ---------------------------------------
(Isaac Kaufman)
/s/ JOSEPH G. MORONE Director June 28, 1999
- ---------------------------------------
(Dr. Joseph G. Morone)
/s/ MICHAEL B. SOLOW Director June 28, 1999
- ---------------------------------------
(Michael B. Solow)
</TABLE>
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INDEX TO EXHIBITS
Exhibit Description
4.1 Restated Certificate of Incorporation -- incorporated herein by reference
to Exhibit 3.1 to Trans World's Annual Report on Form 10-K for the fiscal
year ended January 29, 1994. Commission File No. 0-14818.
4.2 Certificate of Amendment to the Certificate of Incorporation --
incorporated herein by reference to Exhibit 3.1 to Trans World's Quarterly
Report on Form 10-Q for the fiscal quarter ended October 29, 1994.
Commission File No. 0-14818.
4.3 Certificate of Amendment to the Certificate of Incorporation --
incorporated herein by reference to Exhibit 3.4 to Trans World's Annual
Report on Form 10-K for the year ended January 31, 1998. Commission File
No. 0-14818.
4.4 Amended By-Laws -- incorporated herein by reference to Exhibit 3.2 to Trans
World's Annual Report on Form 10-K for the fiscal year ended February 2,
1991. Commission File No. 0-14818.
4.5 Certificate of Amendment to the Certificate of Incorporation --
incorporated herein by reference to Exhibit 4.5 to Trans World's Current
Report on Form 8-K dated April 22, 1999, as amended by Form 8-K/A filed on
May 11, 1999. Commission File No. 0-14818.
4.7 Registration Rights Agreement dated October 26, 1998 between Trans World
and certain stockholders named therein -- incorporated herein by reference
to Exhibit 4 to Trans World's Registration Statement on Form S-4 filed on
March 29, 1999, as amended by Amendment No. 1 on Form S-4/A filed on March
30, 1999. Commission File No. 333-75231.
5 Opinion of Cahill Gordon & Reindel re: legality of Trans World common
stock.
23.1 Consent of KPMG LLP.
23.2 Consent of Cahill Gordon & Reindel (included in Exhibit 5).
24 Power of Attorney (included on the signature page to this Registration
Statement).
99.1 Trans World Entertainment Corporation 1998 Stock Option Plan --
incorporated herein by reference to Annex B to Trans World's Definitive
Proxy Statement on Schedule 14A filed on May 7, 1998. Commission File No.
0-14818.
99.2 Trans World Entertainment Corporation 1999 Stock Option Plan --
incorporated herein by reference to Annex A to Trans World's Definitive
Proxy Statement on Schedule 14A filed on May 19, 1999. Commission File No.
0-14818.
7
Exhibit 5
[Letterhead of Cahill Gordon & Reindel]
June 28, 1999
(212) 701-3000
Trans World Entertainment Corporation
38 Corporate Circle
Albany, New York 12203
Ladies and Gentlemen:
We have examined a copy of the Registration Statement on Form S-8 (the
"Registration Statement") filed by Trans World Entertainment Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission")
relating to the registration pursuant to the provisions of the Securities Act of
1933, as amended (the "Act"), of 4,500,000 shares of Common Stock, par value
$.01 per share, of the Company (the "Shares") which are issuable under the Trans
World Entertainment Corporation 1998 Stock Option Plan and the Trans World
Entertainment Corporation 1999 Stock Option Plan (the "Plans"). In rendering
this opinion, we have reviewed such documents and made such investigation as we
deemed appropriate.
Based upon the foregoing, we are of the opinion that upon the issuance of
Shares in accordance with the terms of the Plans and receipt by the Company of
the consideration therefor, the Shares so issued will have been duly authorized
and will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. In giving such consent, we do not thereby
admit that we are within the category of persons whose consent is required by
Section 7 of the Act and the rules and regulations thereunder.
Very truly yours,
/s/ CAHILL GORDON & REINDEL
8
Exhibit 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
Trans World Entertainment Corporation
We consent to the incorporation by reference in the registration statement
on Form S-8 of Trans World Entertainment Corporation pertaining to the Trans
World Entertainment Corporation 1998 Stock Option Plan and the Trans World
Entertainment Corporation 1999 Stock Option Plan of our report dated March 19,
1999, except as to note 12, which is as of April 22, 1999, relating to the
consolidated balance sheets of Trans World Entertainment Corporation and
subsidiaries as of January 30, 1999 and January 31, 1998, and the related
consolidated statements of income, shareholders' equity, and cash flows for each
of the fiscal years in the three-year period ended January 30, 1999, which
report appears in the Annual Report on Form 10-K of Trans World Entertainment
Corporation and subsidiaries for the fiscal year ended January 30, 1999 filed on
April 30, 1999, and our report dated April 21, 1999, except as to note 17, which
is as of April 22, 1999, relating to the consolidated balance sheet of Camelot
Music Holdings, Inc. and subsidiaries as of January 30, 1999, and the related
consolidated statements of operations, shareholders' equity and cash flows for
the 52-week period then ended, which report appears in the Current Report on
Form 8-K/A of Trans World Entertainment Corporation and subsidiaries filed on
May 11, 1999.
/s/ KPMG LLP
Albany, New York
June 28, 1999
