Registration No. 333
================================================================================
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
(State or other jurisdiction of incorporation or organization)
50-0299573
(I.R.S. Employer Identification No.)
4000 Ruffin Road
San Diego, California 92123
(Address of Principal Executive Offices) (Zip Code)
THE AMENDED AND RESTATED FAMILY BARGAIN CORPORATION
1997 STOCK OPTION PLAN
(Full Title of Plan)
----------
MICHAEL SEARLES
Factory 2-U Stores, Inc.
4000 Ruffin Road
San Diego, California 92123
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (619) 627-1800
Copies to:
DAVID W. BERNSTEIN, ESQ.
Rogers & Wells LLP
200 Park Avenue
New York, New York 10166
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
Title of Securities Amount to be Proposed Proposed Amount of
to be Registered Registered Maximum Maximum Registration
Offering Price Aggregate Fee
Per Share(1) Offering Price(1)
===============================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par
value $0.01 per share 1,807,980 shs. $11.94 $21,587,281 $6002.00
===============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(c), on the basis of the average of the high and low
prices of Registrant's Common Stock reported on the Nasdaq Small Cap Market
on April 1, 1999.
<PAGE>
PART 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the requirements of the Note to Part I of Form S-8 and Rule
428(b)(1) of the Rules under the Securities Act of 1933, as amended, the
information required by Part I of Form S-8 is included in a Booklet dated March
1999 distributed to the employees of Factory 2-U Stores, Inc. who hold options
granted under The Amended and Restated Factory 2-U Stores, Inc. 1997 Stock
Option Plan. This Booklet, together with the documents incorporated by reference
as described in Item 3 of Part II of this Registration Statement, constitutes a
Section 10(a) Prospectus.
1
<PAGE>
PROSPECTUS FOR RESALES
The material which follows, up to but not including the page beginning Part
II of this Registration Statement, constitutes a prospectus, prepared on Form
S-3, in accordance with General Instruction C to Form S-8, to be used in
connection with resales of securities acquired under The Amended and Restated
Factory 2-U Stores, Inc. 1997 Stock Option Plan.
2
<PAGE>
PROSPECTUS
1,807,980 shares
FACTORY 2-U STORES, INC.
COMMON STOCK
(Par value $0.01 per share)
The shares of our Common Stock to which this Prospectus relates may be
offered from time to time by the people described under "Selling Security
Holders" on the Nasdaq SmallCap Market, where our Common Stock currently is
traded, on any securities exchanges or other quotation systems on which our
Common Stock may be traded, in the over-the-counter market or in negotiated
transactions, at prices and on terms then available. The respective Selling
Security Holders will pay any brokerage fees or commissions relating to sales by
them. See "Method of Sale." We will not receive any part of the proceeds of any
such sales. Our principal executive office is located at 4000 Ruffin Road, San
Diego, California 92123 (Telephone No. (619) 627-1800).
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined that
this Prospectus is accurate or complete. Any representation to the contrary is a
criminal offense.
We are paying the expenses of preparing and filing the Registration
Statement of which this Prospectus is a part.
----------
The date of this Prospectus is April 9, 1999
<PAGE>
TABLE OF CONTENTS
Page
----
Incorporation by Reference .................................................. 2
Information We File.......................................................... 2
Selling Security Holders .................................................... 2
Method of Sale............................................................... 3
SEC Position Regarding Indemnification....................................... 3
INCORPORATION BY REFERENCE
We incorporate by reference into this Prospectus (a) our Annual Report on
Form 10-K for the year ended January 31, 1998, (b) all other reports we filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, since January 31, 1998 and (c) the description of our Common Stock
contained in our registration statement under Section 12 of the Securities
Exchange Act relating to our Common Stock, in a proxy statement dated October
19, 1998 and in any amendment or report filed for the purpose of updating that
description. We also incorporate by reference into this Prospectus all the
documents we file pursuant to Sections 13, 14 and 15(d) of the Securities
Exchange Act of 1934 after the date of Prospectus and before we file a
post-effective amendment which indicates that all the securities to which this
Prospectus relates have been sold or which deregisters all those securities
which have not been sold. We will provide copies of all documents which are
incorporated by reference without charge to anyone to whom we deliver this
Prospectus, who makes a written or oral request for them to Factory 2-U Stores,
Inc., 4000 Ruffin Road, San Diego, California 92123, Attention: Chief Financial
Officer, telephone number (619) 627-1800.
INFORMATION WE FILE
We file annual, quarterly and current reports, proxy statements and other
materials with the SEC. The public may read and copy any materials we file with
the SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The public may obtain information on the operation of
the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC
maintains an Internet site that contains reports, proxy and information
statements and other information regarding issuers (including us) that file
electronically with the SEC. The address of that site is http:\\www.sec.gov.
SELLING SECURITY HOLDERS
This Prospectus relates to possible sales by our officers and directors of
shares of our Common Stock which they acquire through exercise of options
granted under our Amended and Restated 1997 Stock Option Plan. We do not know at
this time who may be Selling Security Holders from time to time. We will provide
the names of those people, along with the number of shares of Common Stock
owned, and the number of shares which may be sold, by each of those people from
time to time in supplements to this Prospectus, which we will file with the
Securities and Exchange Commission in accordance with Rule 424(b) under the
Securities Act of 1933, as amended.
2
<PAGE>
METHOD OF SALE
The shares offered by this Prospectus may be sold on the Nasdaq SmallCap
Market, where our Common Stock currently is traded, or in other markets where
our Common Stock is traded, or in negotiated transactions. Sales will be at
prices which are current when the sales take place. Selling Security Holders may
pay brokers' commissions. Shares which are sold may include shares in which
Selling Security Holders have granted security interests and which are being
sold because of foreclosure of those security interests. There is no present
plan of distribution.
SEC POSITION REGARDING INDEMNIFICATION
Our certificate of incorporation provides for indemnification of officers
and directors, 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, our
best interests and in which, with respect to criminal proceedings, they had no
reasonable cause to believe their conduct was unlawful.
We have been informed that, in the opinion of the Securities and Exchange
Commission, insofar as directors, officers or other persons who control us may
become entitled under the provisions of our certificate of incorporation to
indemnification for liabilities arising under the Securities Act of 1933, that
indemnification is against public policy as expressed in that Act and is
therefore unenforceable.
3
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference
The following documents are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended January 31,
1998.
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended, since January 31,
1998.
(c) The descriptions of the Company's Common Stock contained in the
Company's registration statement under Section 12 of the Securities Exchange Act
relating to the Company's Common Stock, in a proxy statement dated October 19,
1998, and in any amendment or report filed for the purpose of updating that
description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, 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, will be deemed incorporated by reference in this Registration Statement
and to be part of it from the date of filing of those documents.
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 registrant'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 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.
The following documents are filed with or incorporated by reference in this
Registration Statement:
Exhibit 5. Opinion of Rogers & Wells LLP.
Exhibit 24. Consents of Experts and Counsel.
(i) Rogers & Wells, LLP (attorneys) - included in Exhibit 5
(ii) Arthur Andersen LLP (accountants)
(iii) KPMG Peat Marwick LLP (accountants)
II-1
<PAGE>
Exhibit 25. Power of Attorney - on signature pages.
Item 9. Undertakings.
(a) 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 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 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 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 this
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, 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 registrant pursuant to the provisions described in Item 15, 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
be governed by the final adjudication of such issue.
II-2
<PAGE>
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 and State of California on this 24th day of
March, 1999.
FACTORY 2-U STORES, INC.
By: /s/ Michael Searles
-----------------------------
Michael Searles
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael Searles, Jonathan W. Spatz and Wm. Robert
Wright II, and each of them, as his or her true and lawful attorney-in-fact and
agent, with full power of substitution, to sign for him or her and in his or her
name, in any and all capacities, all amendments (including post-effective
amendments) to the Registration Statement to which this power of attorney is
attached.
----------
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ Michael Searles Principal Executive Officer March 24, 1999
- ------------------------------- and Director
Michael Searles
/s/ Jonathan W. Spatz Principal Financial Officer March 24, 1999
- -------------------------------
Jonathan W. Spatz
/s/ James Baker Principal Accounting Officer March 24, 1999
- -------------------------------
James Baker
/s/ John J. Borer III Director March 24, 1999
- -------------------------------
John J. Borer III
/s/ Peter V. Handal Director March 24, 1999
- -------------------------------
Peter V. Handal
/s/ Ira Neimark Director March 24, 1999
- -------------------------------
Ira Neimark
/s/ Ronald Rashkow Director March 24, 1999
- -------------------------------
Ronald Rashkow
S-1
<PAGE>
/s/ James D. Somerville Director March 24, 1999
- -------------------------------
James D. Somerville
/s/ H. Whitney Wagner Director March 24, 1999
- -------------------------------
H. Whitney Wagner
/s/ Wm. Robert Wright II Director March 24, 1999
- -------------------------------
Wm. Robert Wright II
S-2
<PAGE>
EXHIBIT INDEX
Page in Sequential
Exhibit Numbering System
- ------- ----------------
Exhibit 5 Opinion of Rogers & Wells LLP
Exhibit 24(i) Consent of Rogers & Wells LLP
(attorneys) included in Exhibit 5
(ii) Consent of Arthur Andersen LLP (accountants)
(iii) Consent of KPMG Peat Marwick LLP (accountants)
Exhibit 25 Powers of Attorney -- on signature pages
Exhibit 5
ROGERS & WELLS LLP LETTERHEAD
March 24, 1999
Factory 2-U Stores, Inc.
4000 Ruffin Road
San Diego, California 92123
Dear Sirs:
We have acted as counsel to Factory 2-U Stores, Inc. (the "Company") in
connection with the proposed issuance of up to 1,807,980 shares (the "Shares")
of common stock, par value $0.01 per share, of the Company upon exercise of
options granted under the Company's Amended and Restated 1997 Stock Option Plan.
In that capacity, we are familiar with the proceedings, corporate and other,
relating to the authorization of the issuance of the Shares.
Based upon the foregoing, and such other examination of law and fact as we
have deemed necessary, we are of the opinion that when Shares are issued and
paid for upon exercise of options granted under the Company's Amended and
Restated 1997 Stock Option Plan, they will be legally issued, fully paid and
non-assessable.
We consent to the filing of this opinion as an exhibit to a registration
statement on Form S-8 relating to the Shares.
Very truly yours,
ROGERS & WELLS LLP
Exhibit 24(ii)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated March 18, 1998 (and to all references to our Firm) included in or made a
part of Factory 2-U Stores, Inc. Registration Statement number 333 on Form S-8.
ARTHUR ANDERSEN LLP
San Diego, California
April 8, 1999
Exhibit 24(iii)
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Factory 2-U Stores, Inc. (formerly Family Bargain Corporation)
We consent to the use of our reports on Family Bargain Corporation incorporated
herein by reference.
KPMG PEAT MARWICK LLP
San Diego, California
April 8, 1999
