-----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, COqjAoKTRYOHTib4+oV3cxQgokREqTCX+4i3ZpyCx5u+bCN1ADuuHfk5mi/46j3A BYT3Lre1BULpgfE/rF78SA== 0000914121-99-000645.txt : 19990708 0000914121-99-000645.hdr.sgml : 19990708 ACCESSION NUMBER: 0000914121-99-000645 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990707 EFFECTIVENESS DATE: 19990707 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TOYS R US INC CENTRAL INDEX KEY: 0001005414 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-HOBBY, TOY & GAME SHOPS [5945] IRS NUMBER: 223260693 STATE OF INCORPORATION: DE FISCAL YEAR END: 0130 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-82377 FILM NUMBER: 99659989 BUSINESS ADDRESS: STREET 1: 461 FROM RD CITY: PARAMUS STATE: NJ ZIP: 07652 BUSINESS PHONE: 2012627800 S-8 1 REGISTRATION STATEMENT AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 6, 1999 REGISTRATION NO. 333-________ ============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------ TOYS "R" US, INC. (Exact name of registrant as specified in its charter) DELAWARE 22-3260693 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 461 FROM ROAD PARAMUS, NEW JERSEY 07652 (201) 262-7800 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) TOYS "R" US, INC. NON-EMPLOYEE DIRECTORS' STOCK UNIT PLAN STOCK OPTION PLAN DEFERRED COMPENSATION PLAN (Full Title of the Plans) LOUIS LIPSCHITZ EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER TOYS "R" US, INC. 461 FROM ROAD PARAMUS, NEW JERSEY 07652 (201) 262-7800 (Name, address, including zip code, and telephone number, including area code, of agent for service) COPIES TO: DENNIS J. BLOCK, ESQ. CADWALADER, WICKERSHAM & TAFT 100 MAIDEN LANE NEW YORK, NEW YORK 10038 (212) 504-6000 ------------------ CALCULATION OF REGISTRATION FEE
=================================================================================================================== TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE REGISTRATION TO BE REGISTERED REGISTERED PRICE PER UNIT OFFERING PRICE FEE - ------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.10 per share (1)(2)(3) 1,199,013 shares $21.28(4) $25,514,996(4) $7,093.17 ===================================================================================================================
(1) To be issued pursuant to the Registrant's Non-Employee Directors' Stock Unit Plan (the "Unit Plan"), Non-Employee Directors' Stock Option Plan (the "Option Plan") or Non-Employee Directors' Deferred Compensation Plan (the "Deferred Compensation Plan") in any combination. Options may be granted with respect to a maximum of 1,000,000 shares of the Registrant's Common Stock under the Option Plan. 199,013 shares represent an estimate of the maximum number of shares issuable under the Unit Plan and the Deferred Compensation Plan. (2) In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement also covers an indeterminate number of shares as may be required to cover possible adjustments under the Unit Plan and the Option Plan. (3) On January 7, 1998, the Registrant entered into a Rights Agreement with American Stock Transfer & Trust Company and declared a dividend distribution of one right for each outstanding share of Common Stock to stockholders of record on January 22, 1998. The rights attached to all shares of Common Stock outstanding on such date and thereafter to all shares of Common Stock issued. The shares of Common Stock registered hereby to be issued pursuant to the Unit Plan, Option Plan and Deferred Compensation Plan include such rights. Such rights are not separately transferable apart from the Common Stock, nor are they exercisable until the occurrence of certain events. Value attributable to such rights, if any, is reflected in the market price of the Common Stock, and such rights are issued for no additional consideration. Accordingly, there is no offering price for the rights, and no registration fee is required. (4) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h)(1) under the Securities Act, based on the average of the high and low prices per share of the Registrant's Common Stock as reported on the New York Stock Exchange Composite Tape on June 29, 1999. 2 EXPLANATORY NOTE This Registration Statement is being filed by Toys "R" Us, Inc., a Delaware corporation (the "Company") in order to register: (i) 1,000,000 shares of the Company's common stock, par value $.10 per share (the "Common Stock"), the maximum number of shares as to which options may be granted under the Toys "R" Us, Inc. Non-Employee Directors' Stock Option Plan (the "1999 Directors' Option Plan"); and (ii) 199,013 shares of Common Stock, estimated to be the maximum number of shares issuable under the Toys "R" Us, Inc. Non-Employee Directors' Stock Unit Plan (the "1999 Directors' Unit Plan") and the Toys "R" Us, Inc. Non-Employee Directors' Deferred Compensation Plan (the "1999 Directors' Deferred Plan"). PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS The documents containing information specified in Part I of Form S-8 will be sent or given to non-employee directors eligible to participate in each of the 1999 Directors' Unit Plan, the 1999 Directors' Option Plan and the 1999 Directors' Deferred Plan as specified by Rule 428(b)(1) of the Securities Act. Those documents and the documents incorporated by reference into this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. I-1 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents, which have been filed by the Company with the Securities and Exchange Commission (the "Commission"), are incorporated in this Registration Statement by reference: 1. The Company's Annual Report on Form 10-K for the fiscal year ended January 30, 1999, filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). 2. The Company's Notice of Annual Meeting of Stockholders and Proxy Statement for its Annual Meeting of Stockholders held on June 9, 1999, filed pursuant to Section 14 of the Exchange Act. 3. The Company's Quarterly Report on Form 10-Q for the quarterly period ended May 1, 1999 filed pursuant to Section 13(a) or 15(d) of the Exchange Act. 4. The Company's Current Report on Form 8-K dated April 16, 1999. 5. The description of the Common Stock contained in Item 1 of the Company's Registration Statement on Form 8-A filed with the Commission on June 18, 1979, pursuant to Section 12 of the Exchange Act, including any amendments or reports filed for the purpose of updating such description. All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to 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 deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in and to be a part of this Registration Statement from the date of filing of such reports and documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The legality of the issuance of the Common Stock being registered hereby is being passed upon by Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, New York 10038, counsel for the Company. Dennis J. Block, a member of Cadwalader, Wickersham & Taft, is the Secretary of the Company. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Limitation of Directors' Liability. The Delaware General Corporation Law ("DGCL") provides that a corporation's certificate of incorporation may include a provision limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. However, no such provision can eliminate or limit the liability of a director (i) for any breach of the director's duty of II-1 loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of the law, (iii) under Section 174 of the DGCL, which relates to liability for unlawful payments of dividends or unlawful stock repurchases or redemptions, (iv) for any transaction from which the director derived an improper personal benefit, or (v) for any act or omission prior to the adoption of such a provision in the certificate of incorporation. The Company's Restated Certificate of Incorporation contains a provision eliminating the personal liability for monetary damages of its directors to the full extent permitted under the DGCL. Indemnification and Insurance. The DGCL contains provisions setting forth conditions under which a corporation may indemnify its directors and officers. The Company's Restated Certificate of Incorporation provides that a director or officer who is a party to any action, suit or proceeding shall be entitled to be indemnified by the Company to the extent permitted by the DGCL against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement incurred by such director or officer in connection with such action, suit or proceeding. The Company has entered into indemnification agreements with each of its directors and intends to enter into indemnification agreements with each of its future directors. Pursuant to such indemnification agreements, the Company has agreed to indemnify its directors against certain liabilities, including any liabilities arising out of this Registration Statement. The Company maintains a standard form of officers' and directors' liability insurance policy which provides coverage to the officers and directors of the Company for certain liabilities. For the undertaking with respect to indemnification, see Item 9. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. Exhibit No. Document --- -------- 4.1 - Restated Certificate of Incorporation of the Registrant (filed on January 2, 1996). Incorporated herein by reference to Exhibit 3.1 to the Form 8-B. 4.2 - Amended and Restated By-Laws of the Registrant (as of January 1, 1996). Incorporated herein by reference to Exhibit 3.2 to the Form 8-B. An amendment dated March 11, 1997 to Amended and Restated By-Laws. Incorporated herein by reference to Exhibit 3B to the Registrant's Annual Report on Form 10-K for the year ended January 31, 1998. 4.3 - Amended and Restated Rights Agreement, dated as of April 16, 1999 between Toys "R" Us, Inc. and American Stock Transfer & Trust Company. Incorporated herein by reference to Exhibit 1 to the Registrant's Current Report on Form 8-K dated April 16, 1999. II-2 Exhibit No. Document --- -------- 4.4 - Toys "R" Us, Inc. Non-Employee Directors' Stock Unit Plan. Incorporated herein by reference to Exhibit A to the Registrant's Proxy Statement for the year ended January 30, 1999. 4.5 - Toys "R" Us, Inc. Non-Employee Directors' Stock Option Plan. Incorporated herein by reference to Exhibit B to the Registrant's Proxy Statement for the year ended January 30, 1999. 4.6 - Toys "R" Us, Inc. Non-Employee Directors' Deferred Compensation Plan. Incorporated herein by reference to Exhibit C to the Registrant's Proxy Statement for the year ended January 30, 1999. 5 - Opinion of Cadwalader, Wickersham & Taft. 23.1 - Consent of Ernst & Young LLP. 23.2 - Consent of Cadwalader, Wickersham & Taft (included in Exhibit 5). 24 - Power of attorney (included in the signature pages to the Registration Statement). ITEM 9. UNDERTAKINGS. The undersigned registrant hereby undertakes: (a) 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; (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 thereto) 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 the 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 a 20 percent 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; II-3 provided, however, that the undertakings set forth in paragraphs (a)(i) and (a)(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 with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment will be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time will be deemed to be the initial bona fide offering thereof. (c) 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. (d) That, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act 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. (e) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referred to in Item 15 of this Registration Statement, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant hereby 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 Paramus, State of New Jersey, on July 6, 1999. TOYS "R" US, INC. By: /s/ Louis Lipschitz ------------------------------- LOUIS LIPSCHITZ Executive Vice President and Chief Financial Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Louis Lipschitz and Dennis J. Block, and each of them, his true and lawful attorneys-in-fact and agents, 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, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform such and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, 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 indicated on July 6, 1999. Signature Title --------- ----- /s/ Robert C. Nakasone - ------------------------------------- Director and Chief Executive Officer Robert C. Nakasone (Principal Executive Officer) /s/ Louis Lipschitz - ------------------------------------- Executive Vice President and Chief Louis Lipschitz Financial Officer (Principal Financial Officer) /s/ Raymond L. Arthur - ------------------------------------- Vice President - Controller Raymond L. Arthur (Principal Accounting Officer) /s/ Michael Goldstein - ------------------------------------- Chairman of the Board Michael Goldstein /s/ Robert A. Bernhard - ------------------------------------- Director Robert A. Bernhard II-5 Signature Title --------- ----- /s/ RoAnn Costin - ------------------------------------- Director RoAnn Costin /s/ Calvin Hill - ------------------------------------- Director Calvin Hill /s/ Shirley Strum Kenny - ------------------------------------- Director Shirley Strum Kenny /s/ Charles Lazarus - ------------------------------------- Director, Chairman Emeritus Charles Lazarus /s/ Norman S. Matthews - ------------------------------------- Director Norman S. Matthews /s/ Howard W. Moore - ------------------------------------- Director Howard W. Moore /s/ Arthur B. Newman - ------------------------------------- Director Arthur B. Newman II-6 Exhibit Index ------------- Exhibit No. Document --- -------- 4.1 - Restated Certificate of Incorporation of the Registrant (filed on January 2, 1996). Incorporated herein by reference to Exhibit 3.1 to the Form 8-B. 4.2 - Amended and Restated By-Laws of the Registrant (as of January 1, 1996). Incorporated herein by reference to Exhibit 3.2 to the Form 8-B. An amendment dated March 11, 1997 to Amended and Restated By-Laws. Incorporated herein by reference to Exhibit 3B to the Registrant's Annual Report on Form 10-K for the year ended January 31, 1998. 4.3 - Amended and Restated Rights Agreement, dated as of April 16, 1999 between Toys "R" Us, Inc. and American Stock Transfer & Trust Company. Incorporated herein by reference to Exhibit 1 to the Registrant's Current Report on Form 8-K dated April 16, 1999. 4.4 - Toys "R" Us, Inc. Non-Employee Directors' Stock Unit Plan. Incorporated herein by reference to Exhibit A to the Registrant's Proxy Statement for the year ended January 30, 1999. 4.5 - Toys "R" Us, Inc. Non-Employee Directors' Stock Option Plan. Incorporated herein by reference to Exhibit B to the Registrant's Proxy Statement for the year ended January 30, 1999. 4.6 - Toys "R" Us, Inc. Non-Employee Directors' Deferred Compensation Plan. Incorporated herein by reference to Exhibit C to the Registrant's Proxy Statement for the year ended January 30, 1999. 5 - Opinion of Cadwalader, Wickersham & Taft. 23.1 - Consent of Ernst & Young LLP. 23.2 - Consent of Cadwalader, Wickersham & Taft (included in Exhibit 5). 24 - Power of attorney (included in the signature pages to the Registration Statement). EX-5 2 OPINION LETTER Exhibit 5 [LETTERHEAD OF CADWALADER, WICKERSHAM & TAFT] July 6, 1999 Toys "R" Us, Inc. 461 From Road Paramus, New Jersey 07652 Re: Toys "R" Us, Inc. Registration Statement on Form S-8 ---------------------------------------------------- Ladies and Gentlemen: We have acted as counsel to Toys "R" Us, Inc. (the "Company") in connection with the preparation and filing by the Company with the Securities and Exchange Commission (the "Commission") of a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the registration of up to 1,199,013 shares of common stock, par value $.10 per share, of the Company (the "Common Stock") to be issued pursuant to the Company's Non-Employee Directors' Stock Unit Plan (the "Stock Unit Plan"), Non-Employee Directors' Stock Option Plan (the "Stock Option Plan") and Non-Employee Directors' Deferred Compensation Plan (the "Deferred Compensation Plan" and together with the Stock Unit Plan and the Stock Option Plan, the "Plans"). Up to 1,000,000 authorized and unissued shares of Common Stock (the "Shares") are reserved for issuance pursuant to the Stock Option Plan, which Shares may be issued pursuant to either of the Stock Option Plan or the Deferred Compensation Plan. In so acting, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Registration Statement, the Plans, and such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth. Toys "R" Us, Inc. -2- July 6, 1999 In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to this opinion that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company. We are members of the Bar of the State of New York, and in rendering the opinion below, we do not purport to be an expert in, or express any opinion concerning, the laws of any jurisdiction other than the substantive laws of the State of New York and the General Corporation Law of the State of Delaware (in each case without regard to conflicts of law principles). Based on the foregoing, we are of the opinion that the Shares, when issued in accordance with the Stock Option Plan and/or the Deferred Compensation Plan, will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement, without admitting that we are "experts" within the meaning of the Securities Act or the rules and regulations of the Commission issued thereunder with respect to any part of the Registration Statement, including this exhibit. Very truly yours, /s/ Cadwalader, Wickersham & Taft EX-23.1 3 CONSENT OF INDEPENDENT AUDITORS Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Toys "R" Us, Inc. Non-Employee Directors' Stock Unit Plan, Stock Option Plan and Deferred Compensation Plan of our report dated March 10, 1999, with respect to the consolidated financial statements of Toys "R" Us, Inc. and subsidiaries incorporated by reference in its Annual Report (Form 10-K) for the year ended January 30, 1999, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Ernst & Young LLP New York, New York July 6, 1999 -----END PRIVACY-ENHANCED MESSAGE-----