As filed with the Securities and Exchange Commission on January 3, 1996
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_______________
FORM 8-B
FOR REGISTRATION OF SECURITIES OF
CERTAIN SUCCESSOR ISSUERS
FILED PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
_______________
TOYS "R" US, INC.
(formerly Toys "R" Us-Headquarters, Inc.1)
(Exact Name of Registrant as Specified in its Charter)
Delaware 22-3260693
(State or Other Jurisdiction of IRS Employer
Incorporation or Organization) Identification No.)
461 From Road, Paramus, New Jersey 07652
(Address of Principal Executive Offices, Including Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered: Each Class is to be Registered:
-------------------- -------------------------------
Common Stock, New York Stock Exchange, Inc.
par value $.10 per share
Securities to be registered pursuant to Section 12(g) of the Act:
None
______________________________________________________________________________
1 Toys "R" Us, Inc. (the "Registrant"), a Delaware corporation which
changed its name on January 1, 1996 from "Toys "R" Us-Headquarters, Inc." to
"Toys "R" Us, Inc.", is the successor of Toys "R" Us-Delaware, Inc. (the
"Predecessor"), a Delaware corporation which was incorporated on February 14,
1928 under the name "Interstate Department Stores, Inc." and which changed its
name on January 1, 1996 from "Toys "R" Us, Inc." to "Toys "R" Us-Delaware,
Inc." All references in Item 5 herein to the "Registrant" refer to the
Predecessor as succeeded by the Registrant.
<PAGE>
Item 1. General Information.
(a) Toys "R" Us, Inc., formerly known as Toys "R" Us-
Headquarters, Inc. (the "Registrant"), was organized as a corporation under
the laws of the State of Delaware on October 26, 1993.
(b) The fiscal year of the Registrant ends on the Saturday which
falls nearest to the last day of January in each year.
Item 2. Transaction of Succession.
(a) Toys "R" Us-Delaware, Inc., a Delaware corporation, formerly
known as Toys "R" Us, Inc. and the only predecessor of the registrant (the
"Predecessor"), had securities registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended, and listed on the New York Stock
Exchange, Inc. (the "NYSE") at the time of the succession.
(b) On January 1, 1996, pursuant to Section 251(g) of the
Delaware General Corporation Law and the Agreement and Plan of Merger, dated
as of December 8, 1995, by and among the Predecessor, the Registrant and TRU
Interim, Inc., a wholly-owned Delaware subsidiary of the Registrant ("Merger
Sub"), Merger Sub merged (the "Merger") with and into the Predecessor, which
was the surviving corporation in the Merger, and ceased to exist. Pursuant to
the Merger, (i) each share of common stock, par value $.01 per share, of
Merger Sub issued and outstanding immediately prior to the effective time of
the Merger (the "Effective Time"), including each share that was owned by the
Predecessor or its subsidiaries, was converted into one share of common stock,
par value $.10 per share, of the Predecessor, (ii) each share of common stock,
par value $.10 per share, of the Predecessor issued and outstanding or held in
its treasury immediately prior to the Effective Time was converted into one
share of common stock, par value $.10 per share, of the Registrant
("Registrant Common Stock"), and (iii) each share of Registrant Common Stock
issued and outstanding immediately prior to the Effective Time continued to be
held by the Predecessor. As a result of the Merger, the Predecessor became a
direct wholly-owned subsidiary of the Registrant and the Registrant became the
holding company for Toys "R" Us' operating subsidiaries.
Item 3. Securities to be Registered.
The Registrant is authorized by its Certificate of Incorporation
to issue up to 650,000,000 shares of Common Stock. As of January 1, 1996,
there were 300,444,796 shares of Common Stock issued and outstanding, of which
27,340,070 shares were held by or for the account of the Registrant.
Item 4. Description of Registrant's Securities to be Registered.
The description of Common Stock set forth in Item 1 of the
Registration Statement on Form 8-A of the Predecessor filed with the
Securities and Exchange Commission on June 13, 1979, including any amendment
or reports filed for the purpose of updating such description, is incorporated
herein by reference and the Restated Certificate of Incorporation of the
Registrant filed as Exhibit 3.1 hereto is incorporated herein by reference.
Copies of the Form 8-A and the Restated Certificate of Incorporation have been
filed with the NYSE.
<PAGE>
Item 5. Financial Statements and Exhibits.
(a) Financial Statements.
As provided in Instruction (a) of Instructions as to Financial
Statements for Form 8-B, no financial statements are being filed with this
Registration Statement since the capital structure and balance sheet of the
Registrant immediately after the succession will be substantially the same as
those of the Predecessor.
(b) Exhibits.
*2.1 Agreement and Plan of Merger, dated as of December 8, 1995,
by and among the Predecessor, the Registrant and TRU
Interim, Inc.
*3.1 Restated Certificate of Incorporation of the Registrant
(filed on January 2, 1996).
*3.2 Amended and Restated By-Laws of the Registrant (as of
January 1, 1996).
4.1 Form of Indenture dated as of January 1, 1987 between the
Registrant and United Jersey Bank, as Trustee, pursuant to
which Securities in one or more series in an unlimited
amount may be issued by the Registrant (incorporated herein
by reference to Exhibit 4(a) to Registrant's Registration
Statement No. 33-11461).
4.2 Form of the Registrant's 8 1/4% Sinking Fund Debentures due
2017 (incorporated herein by reference to Exhibit 4(b) to
Registrant's Registration Statement No. 33-11461).
4.3 Form of Indenture between the Registrant and United Jersey
Bank, as Trustee, pursuant to which one or more series of
debt securities up to $300,000,000 in principal amount may
be issued by the Registrant (incorporated herein by
reference to Exhibit 4 to Registrant's Registration
Statement No. 33-42237).
4.4 Form of the Registrant's 8 3/4% Debentures due 2021
(incorporated herein by reference to Exhibit 4 to
Registrant's Current Report on Form 8-K dated August 29,
1991).
4.5 Substantially all other long-term debt of the Registrant
(which other debt does not exceed on an aggregate basis 10%
of the total assets of the Registrant and its subsidiaries
on a consolidated basis) is evidenced by, among other
things, (i) industrial revenue bonds issued by industrial
development authorities and guaranteed by the Registrant,
(ii) mortgages held by third parties on real estate owned
by the Registrant, (iii) stepped coupon guaranteed bonds
held by a third party and guaranteed by the Registrant, and
(iv) an agreement under which the Registrant guaranteed
certain yen-denominated loans made by a third party to a
subsidiary of the Registrant. The Registrant will file with
the Securities and Exchange Commission (the "Commission")
copies of the constituent documents relating to such debt
upon request of the Commission.
<PAGE>
10.1 Stock Option Plan of the Registrant, as amended as of April
22, 1993 (incorporated herein by reference to Exhibit 10A to
Registrant's Annual Report on Form 10-K for the year ended
January 30, 1993).
10.2 Employment Agreement dated March 14, 1978 between the
Registrant and Charles Lazarus and an amendment thereto
dated November 20, 1979 (incorporated herein by reference to
Exhibit 2 to a Schedule 13D dated February 1, 1980 filed by
Charles Lazarus, et al). An amendment dated March 23, 1982
to such employment agreement (incorporated herein by
reference to Exhibit 10B to Registrant's Annual Report on
Form 10-K for the year ended January 31, 1982). An
amendment dated December 7, 1982 to such employment
agreement (incorporated herein by reference to Exhibit 10B
to Registrant's Annual Report on Form 10-K for the year
ended January 30, 1983). An amendment dated April 10, 1984
to such employment agreement (incorporated herein by
reference to Exhibit 10B to Registrant's Annual Report on
Form 10-K for the year ended January 29, 1984). An
amendment dated March 14, 1989 to such employment agreement
(incorporated herein by reference to Exhibit 10B to
Registrant's Annual Report on Form 10-K for the year ended
January 29, 1989).
10.3 Form of Indemnification Agreement between the Registrant and
each director (incorporated herein by reference to Exhibit
10F to Registrant's Annual Report on Form 10-K for the year
ended February 1, 1987).
10.4 Stock Option Agreement dated as of February 1, 1988 between
the Registrant and Robert Nakasone (incorporated herein by
reference to Exhibit 10G to Registrant's Annual Report on
Form 10-K for the year ended January 31, 1988). The first
amendment dated April 1, 1989 to such agreement
(incorporated herein by reference to Exhibit 10G to
Registrant's Annual Report on Form 10-K for the year ended
January 29, 1989). The second amendment dated September 19,
1989 to such agreement (incorporated herein by reference to
Exhibit 10G to Registrant's Annual Report on Form 10-K for
the year ended January 28, 1990).
10.5 Stock Option Agreement dated as of February 1, 1988 between
the Registrant and Michael Goldstein (incorporated herein by
reference to Exhibit 10H to Registrant's Annual Report on
Form 10-K for the year ended January 31, 1988). The first
amendment dated April 1, 1989 to such agreement
(incorporated herein by reference to Exhibit 10H to
Registrant's Annual Report on Form 10-K for the year ended
January 29, 1989). The second amendment dated September 19,
1989 to such agreement (incorporated herein by reference to
Exhibit 10H to Registrant's Annual Report on Form 10-K for
the year ended January 28, 1990).
10.6 Stock Option Plan and Agreement dated as of March 14, 1989
between the Registrant and Charles Lazarus, and a First
Amendment thereto dated as of September 19, 1989
(incorporated herein by reference to Exhibit 10I to
Registrant's Annual Report on Form 10-K for the year ended
January 28, 1990).
<PAGE>
10.7 Non-Employee Directors' Stock Option Plan as adopted by the
Board of Directors on September 19, 1990 and approved by the
Registrant's stockholders on June 3, 1991 (incorporated
herein by reference to Exhibit 10H to Registrant's Annual
Report on Form 10-K for the year ended February 1, 1992).
10.8 Stock Option Plan and Agreement dated as of December 2, 1992
between the Registrant and Robert C. Nakasone (incorporated
herein by reference to Exhibit 10I to Registrant's Annual
Report on Form 10-K for the year ended January 30, 1993).
10.9 Stock Option Plan and Agreement dated as of December 2, 1992
between the Registrant and Michael Goldstein (incorporated
herein by reference to Exhibit 10J to Registrant's Annual
Report on Form 10-K for the year ended January 30, 1993).
10.10 Toys "R" Us, Inc. 1994 Stock Option and Performance
Incentive Plan effective November 1, 1993, as amended
(incorporated herein by reference to Exhibit 4.1 to
Registrant's Registration Statement No. 33-64315).
*10.11 Management Incentive Compensation Plan of the Registrant
adopted March 28, 1994 (incorporated herein by reference to
Exhibit 10L to Registrant's Annual Report on Form 10-K for
the year ended January 29, 1994). The amendment to such
plan adopted on April 20, 1993 is filed herewith.
10.12 Toys "R" Us, Inc. 1995 Employee Stock Option Plan
(incorporated herein by reference to Exhibit 4.2 to
Registrant's Registration Statement No. 33-64315).
*10.13 Toys "R" Us, Inc. Partnership Group Deferred Compensation
Plan effective as of May 17, 1995.
*10.14 Toys "R" Us, Inc. Grantor Trust Agreement dated as of
October 1, 1995 between the Registrant and American Express
Trust Company.
*21 Subsidiaries of the Registrant.
______________________
* Filed herewith
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
Dated: January 3, 1996
TOYS "R" US, INC.
By: /s/ Louis Lipschitz
Louis Lipschitz
Senior Vice President-Finance
and Chief Financial Officer
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
______________________________________________________________________________
*2.1 Agreement and Plan of Merger, dated as of December 8, 1995,
by and among the Predecessor, the Registrant and TRU
Interim, Inc.
*3.1 Restated Certificate of Incorporation of the Registrant
(filed on January 2, 1996).
*3.2 Amended and Restated By-Laws of the Registrant (as of
January 1, 1996).
4.1 Form of Indenture dated as of January 1, 1987 between the
Registrant and United Jersey Bank, as Trustee, pursuant to
which Securities in one or more series in an unlimited
amount may be issued by the Registrant (incorporated herein
by reference to Exhibit 4(a) to Registrant's Registration
Statement No. 33-11461).
4.2 Form of the Registrant's 8 1/4% Sinking Fund Debentures due
2017 (incorporated herein by reference to Exhibit 4(b) to
Registrant's Registration Statement No. 33-11461).
4.3 Form of Indenture between the Registrant and United Jersey
Bank, as Trustee, pursuant to which one or more series of
debt securities up to $300,000,000 in principal amount may
be issued by the Registrant (incorporated herein by
reference to Exhibit 4 to Registrant's Registration
Statement No. 33-42237).
4.4 Form of the Registrant's 8 3/4% Debentures due 2021
(incorporated herein by reference to Exhibit 4 to
Registrant's Current Report on Form 8-K dated August 29,
1991).
4.5 Substantially all other long-term debt of the Registrant
(which other debt does not exceed on an aggregate basis 10%
of the total assets of the Registrant and its subsidiaries
on a consolidated basis) is evidenced by, among other
things, (i) industrial revenue bonds issued by industrial
development authorities and guaranteed by the Registrant,
(ii) mortgages held by third parties on real estate owned
by the Registrant, (iii) stepped coupon guaranteed bonds
held by a third party and guaranteed by the Registrant, and
(iv) an agreement under which the Registrant guaranteed
certain yen-denominated loans made by a third party to a
subsidiary of the Registrant. The Registrant will file with
the Securities and Exchange Commission (the "Commission")
copies of the constituent documents relating to such debt
upon request of the Commission.
10.1 Stock Option Plan of the Registrant, as amended as of April
22, 1993 (incorporated herein by reference to Exhibit 10A to
Registrant's Annual Report on Form 10-K for the year ended
January 30, 1993).
<PAGE>
10.2 Employment Agreement dated March 14, 1978 between the
Registrant and Charles Lazarus and an amendment thereto
dated November 20, 1979 (incorporated herein by reference to
Exhibit 2 to a Schedule 13D dated February 1, 1980 filed by
Charles Lazarus, et al). An amendment dated March 23, 1982
to such employment agreement (incorporated herein by
reference to Exhibit 10B to Registrant's Annual Report on
Form 10-K for the year ended January 31, 1982). An
amendment dated December 7, 1982 to such employment
agreement (incorporated herein by reference to Exhibit 10B
to Registrant's Annual Report on Form 10-K for the year
ended January 30, 1983). An amendment dated April 10, 1984
to such employment agreement (incorporated herein by
reference to Exhibit 10B to Registrant's Annual Report on
Form 10-K for the year ended January 29, 1984). An
amendment dated March 14, 1989 to such employment agreement
(incorporated herein by reference to Exhibit 10B to
Registrant's Annual Report on Form 10-K for the year ended
January 29, 1989).
10.3 Form of Indemnification Agreement between the Registrant and
each director (incorporated herein by reference to Exhibit
10F to Registrant's Annual Report on Form 10-K for the year
ended February 1, 1987).
10.4 Stock Option Agreement dated as of February 1, 1988 between
the Registrant and Robert Nakasone (incorporated herein by
reference to Exhibit 10G to Registrant's Annual Report on
Form 10-K for the year ended January 31, 1988). The first
amendment dated April 1, 1989 to such agreement
(incorporated herein by reference to Exhibit 10G to
Registrant's Annual Report on Form 10-K for the year ended
January 29, 1989). The second amendment dated September 19,
1989 to such agreement (incorporated herein by reference to
Exhibit 10G to Registrant's Annual Report on Form 10-K for
the year ended January 28, 1990).
10.5 Stock Option Agreement dated as of February 1, 1988 between
the Registrant and Michael Goldstein (incorporated herein by
reference to Exhibit 10H to Registrant's Annual Report on
Form 10-K for the year ended January 31, 1988). The first
amendment dated April 1, 1989 to such agreement
(incorporated herein by reference to Exhibit 10H to
Registrant's Annual Report on Form 10-K for the year ended
January 29, 1989). The second amendment dated September 19,
1989 to such agreement (incorporated herein by reference to
Exhibit 10H to Registrant's Annual Report on Form 10-K for
the year ended January 28, 1990).
10.6 Stock Option Plan and Agreement dated as of March 14, 1989
between the Registrant and Charles Lazarus, and a First
Amendment thereto dated as of September 19, 1989
(incorporated herein by reference to Exhibit 10I to
Registrant's Annual Report on Form 10-K for the year ended
January 28, 1990).
10.7 Non-Employee Directors' Stock Option Plan as adopted by the
Board of Directors on September 19, 1990 and approved by the
Registrant's stockholders on June 3, 1991 (incorporated
herein by reference to Exhibit 10H to Registrant's Annual
Report on Form 10-K for the year ended February 1, 1992).
<PAGE>
10.8 Stock Option Plan and Agreement dated as of December 2, 1992
between the Registrant and Robert C. Nakasone (incorporated
herein by reference to Exhibit 10I to Registrant's Annual
Report on Form 10-K for the year ended January 30, 1993).
10.9 Stock Option Plan and Agreement dated as of December 2, 1992
between the Registrant and Michael Goldstein (incorporated
herein by reference to Exhibit 10J to Registrant's Annual
Report on Form 10-K for the year ended January 30, 1993).
10.10 Toys "R" Us, Inc. 1994 Stock Option and Performance
Incentive Plan effective November 1, 1993, as amended
(incorporated herein by reference to Exhibit 4.1 to
Registrant's Registration Statement No. 33-64315).
*10.11 Management Incentive Compensation Plan of the Registrant
adopted March 28, 1994 (incorporated herein by reference to
Exhibit 10L to Registrant's Annual Report on Form 10-K for
the year ended January 29, 1994). The amendment to such
plan adopted on April 20, 1993 is filed herewith.
10.12 Toys "R" Us, Inc. 1995 Employee Stock Option Plan
(incorporated herein by reference to Exhibit 4.2 to
Registrant's Registration Statement No. 33-64315).
*10.13 Toys "R" Us, Inc. Partnership Group Deferred Compensation
Plan effective as of May 17, 1995.
*10.14 Toys "R" Us, Inc. Grantor Trust Agreement dated as of
October 1, 1995 between the Registrant and American Express
Trust Company.
*21 Subsidiaries of the Registrant.
______________________
* Filed herewith
EXHIBIT 2.1
___________________________________________________________________________
AGREEMENT AND PLAN OF MERGER
by and among
TOYS "R" US, INC.
(a Delaware corporation)
and
TOYS "R" US-HEADQUARTERS, INC.
(a Delaware corporation)
and
TRU INTERIM, INC.
(a Delaware corporation)
_______________________________
Dated as of December 8, 1995
_______________________________
___________________________________________________________________________
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 8, 1995, by and
among TOYS "R" US, INC., a Delaware corporation ("Toys 'R' Us"), TOYS "R" US-
HEADQUARTERS, INC., a Delaware corporation and a wholly-owned subsidiary of
Toys "R" Us ("Toys HQ"), and TRU INTERIM, INC., a Delaware corporation and a
wholly-owned subsidiary of Toys HQ ("TRU Interim").
This Agreement provides for the merger of TRU Interim with and
into Toys "R" Us (the "Merger"), which will be the surviving corporation, in
accordance with Section 251(g) of the General Corporation Law of the State of
Delaware (the "DGCL"), upon the terms and conditions set forth herein and in
accordance with the applicable provisions of the DGCL. The purpose of the
Merger is to implement a holding company organizational structure under which
Toys HQ would be the holding company for Toys "R" Us' operating subsidiaries
and Toys "R" Us would become a direct wholly-owned subsidiary of Toys HQ.
The respective Boards of Directors of Toys "R" Us, Toys HQ and TRU
Interim have approved the Merger upon the terms and subject to the conditions
set forth herein.
Accordingly, in consideration of the mutual promises and
agreements set forth herein, and in order to set forth the terms and
conditions of the Merger and the mode of carrying the same into effect, the
parties hereby agree as follows:
<PAGE>
1. The Merger.
1.1 The Merger. At the Effective Time (as defined in Section
1.3 hereof), and subject to the terms and conditions of this Agreement and the
DGCL, TRU Interim shall be merged with and into Toys "R" Us in the Merger, the
separate corporate existence of TRU Interim shall thereupon cease, and Toys
"R" Us shall be the surviving corporation in the Merger (the "Surviving
Corporation").
1.2 Surviving Corporation. At the Effective Time, Toys "R" Us
shall continue its corporate existence under the laws of the State of Delaware
and shall thereupon and thereafter possess all rights, privileges, powers and
franchises and all property of TRU Interim and shall be subject to all debts,
liabilities and duties of TRU Interim, all as provided under the DGCL.
1.3 Effective Time of the Merger. The Merger shall become
effective and be consummated at 5:00 p.m., local time, on January 1, 1996 (the
"Effective Time"), provided that the Surviving Corporation shall have caused
to be filed prior to the Effective Time a certified copy of this Agreement
with the Secretary of State of the State of Delaware (the "Delaware Secretary
of State") in accordance with the DGCL, as set forth in Section 3.4 hereof.
1.4 Certificate of Incorporation of the Surviving Corporation.
At the Effective Time, the Certificate of Incorporation of Toys "R" Us, as
amended and in effect immediately prior to the Effective Time, shall be
amended as set forth below and as so amended shall thereafter continue in full
force and effect as the Certificate of Incorporation of the Surviving
Corporation until further amended as provided therein and under the DGCL.
2
<PAGE>
(a) Article FIRST shall be amended to read in its entirety as
follows:
"FIRST. The name of the Corporation is TOYS "R" US-DELAWARE,
INC."
(b) Article FOURTH shall be amended to read in its entirety as
follows:
"FOURTH. The aggregate number of shares which the Corporation
shall have the authority to issue is One Thousand (1,000) shares of Common
Stock, par value $.10 per share."
(c) Article TENTH shall be added and will read as follows:
"TENTH. Any act or transaction by or involving the Corporation
that requires for its adoption under the Delaware General Corporation Law or
under this Certificate of Incorporation the approval of the Corporation's
stockholders shall, pursuant to Section 251(g) of the Delaware General
Corporation Law, require, in addition, the approval of the stockholders of the
Corporation's holding company, Toys "R" Us, Inc., or any successor by merger,
by the same vote as is required by the Delaware General Corporation Law and/or
by the Certificate of Incorporation of the Corporation."
1.5 By-Laws of the Surviving Corporation. The By-Laws of Toys
"R" Us (as amended and restated effective January 31, 1994), as in effect
immediately prior to the Effective Time, shall be amended as set forth below
and so amended shall thereafter continue in full force and effect as the By-
Laws of the Surviving Corporation until thereafter amended or repealed as
provided therein and under the DGCL.
The first paragraph of Section 2.1 of Article II shall be amended
to read in its entirety as follows:
3
<PAGE>
"Section 2.1 Number, Term of Office and Notice of Nomination.
The business, property and affairs of the Corporation shall be managed and
controlled by a Board of three (3) directors; provided, however, that the
Board, by resolution adopted by vote of a majority of the then authorized
number of directors, may increase or decrease the number of directors. The
directors shall be elected at the annual meeting of stockholders, and serve
(subject to the provisions of Article IV) until the next succeeding annual
meeting of stockholders and until the election and qualification of their
respective successors."
1.6 Directors and Officers of the Surviving Corporation. At the
Effective Time, the directors and officers of the Surviving Corporation shall
be those persons listed on Exhibit A attached hereto, in the case of
directors, until their successors are elected and qualified and, in the case
of officers, to serve at the pleasure of the Board of Directors of the
Surviving Corporation.
2. Conversion of Securities and Assumption of Certain
Obligations.
2.1 Conversion of Securities. At the Effective Time, by virtue
of the Merger and without any action on the part of Toys "R" Us, Toys HQ, TRU
Interim or the holders of any securities of the foregoing corporations:
2.1.1 Common Stock of TRU Interim. Each share of common
stock, par value $.01 per share, of TRU Interim issued and outstanding
immediately prior to the Effective Time, including each share that is owned by
Toys "R" Us or its subsidiaries, shall be converted into one share of common
stock, par value $.10 per share, of the Surviving Corporation.
4
<PAGE>
2.1.2 Common Stock of Toys "R" Us. Each share of common
stock, par value $.10 per share, of Toys "R" Us ("Toys 'R' Us Common Stock")
issued and outstanding or held in its treasury immediately prior to the
Effective Time shall be converted into one share of common stock, par value
$.10 per share, of Toys HQ ("Toys HQ Common Stock"), and shall have the same
designations, rights and powers and preferences, and the qualifications,
limitations and restrictions thereof, as the Toys "R" Us Common Stock being
converted. Each certificate representing shares of Toys "R" Us Common Stock
immediately prior to the Effective Time shall be deemed without the need for
any exchange or transfer to represent the same number of shares of Toys HQ
Common Stock.
2.1.3 Common Stock of Toys HQ. Each share of Toys HQ
Common Stock issued and outstanding immediately prior to the Effective Time
shall continue to be held by the Surviving Corporation.
2.1.4 Toys "R" Us Stock Options and Other Awards. Toys HQ
shall assume and continue all the rights and obligations of Toys "R" Us under
the 1994 Stock Option and Performance Incentive Plan, the 1995 Employee Stock
Option Plan and all other stock option and employee benefit plans and
agreements of Toys "R" Us (collectively, the "Plans"). The outstanding
options and other awards assumed by Toys HQ shall be exercisable upon the same
terms and conditions as under the Plans immediately prior to the Effective
Time, except that, upon the exercise of each such option or award, shares of
Toys HQ Common Stock shall be issuable in lieu of each share of Toys "R" Us
Common Stock issuable upon the exercise thereof immediately prior to the
Effective Time.
5
<PAGE>
2.1.5 It is the intent of the parties hereto that Toys HQ,
as of the Effective Time, be deemed a "successor issuer" for purposes of
continuing offerings under the Securities Act of 1933, as amended.
2.2 Retention of Certificates. Each outstanding certificate
that prior to the Effective Time represented shares of Toys "R" Us Common
Stock shall be deemed, for all corporate purposes, to evidence ownership of
the number of shares of Toys HQ Common Stock into which such shares of Toys
"R" Us Common Stock have been converted pursuant to Section 2.1.2 hereof.
2.3 Toys "R" Us Stock Transfer Books. At the Effective Time,
the stock transfer books for the shares of Toys "R" Us Common Stock which will
be converted to Toys HQ Common Stock pursuant to Section 2.1 hereof shall be
deemed closed, and no transfer of such shares shall thereafter be made or
consummated.
2.4 Other Agreements. At the Effective Time, Toys HQ shall
assume any obligation of Toys "R" Us to deliver or make available shares of
Toys "R" Us Common Stock under any agreement or employee benefit plan not
referred to in this Section 2 to which Toys "R" Us or any of its subsidiaries
is a party. Any reference to Toys "R" Us Common Stock under any such
agreement or employee benefit plan shall be deemed to be a reference to Toys
HQ Common Stock and one share of Toys HQ Common Stock shall be issuable in
lieu of each share of Toys "R" Us Common Stock required to be issued by any
such agreement or employee benefit plan, subject to subsequent adjustment as
provided in any such agreement or employee benefit plan.
6
<PAGE>
2.5 Assumption and Guaranty of Toys "R" Us Debt and Other
Obligations.
2.5.1 Toys "R" Us Public Debt. At the Effective Time,
Toys HQ shall be deemed to have assumed the obligations of Toys "R" Us in
respect of the following outstanding publicly-held debt: Toys "R" Us' 8 1/4%
Debentures due 2017 and Toys "R" Us' 8 3/4% Debentures due 2021.
2.5.2 Revolving Credit Facility. Certain of the
subsidiaries of Toys "R" Us are borrowers under a Credit Agreement, dated as
of January 27, 1995, by and among Toys "R" Us, the Subsidiary Borrowers party
thereto, the Lenders party thereto, and The Bank of New York, as
Administrative Agent (the "Credit Agreement"). Toys "R" Us has guaranteed all
of the obligations under the Credit Agreement. At the Effective Time, Toys
"R" Us assigns the rights and Toys HQ assumes the obligations of Toys "R" Us
under the Credit Agreement.
2.5.3 Other Debt. At the Effective Time, Toys HQ assumes,
to the extent Toys "R" Us is liable therefor, or guarantees, to the extent
that Toys "R" Us is a guarantor thereof, all other indebtedness for money
borrowed, including, without limitation, the obligations under its stepped
coupon bonds pursuant to the Trust Deed, dated April 2, 1992, between Toys "R"
Us Holdings PLC, Toys "R" Us and Bankers Trust Company Limited, several
industrial revenue bonds and a loan to a Japanese subsidiary of Toys "R" Us
pursuant to the Guarantee, dated July 8, 1992, executed by Toys "R" Us in
favor of American Family Life Assurance Company of Columbus.
2.5.4 Additional Covenants. Toys "R" Us and Toys HQ will
execute and deliver such supplemental indentures and trust deeds and other
documents or certificates
7
<PAGE>
as the officers of Toys "R" Us and Toys HQ deem appropriate or necessary to
comply with the terms of the indebtedness or other obligations assumed or
guaranteed under this Section 2.5.
3. Compliance with Section 251(g) of the DGCL. Prior to the
Effective Time, the parties hereto will take all steps necessary to comply
with Section 251(g) of the DGCL, including without limitation, the following:
3.1 Certificate of Incorporation and By-Laws of Toys HQ. At the
Effective Time, the Certificate of Incorporation and By-Laws of Toys HQ shall
be in the form of the Certificate of Incorporation and By-Laws of Toys "R" Us,
as in effect immediately prior to the Effective Time.
3.2 Directors and Officers of Toys HQ. At the Effective Time,
the directors and officers of Toys "R" Us immediately prior to the Effective
Time shall be the directors and officers of Toys HQ, in the case of directors,
until their successors are elected and qualified and, in the case of officers,
to serve at the pleasure of the Board of Directors of Toys HQ.
3.3 Listing of Toys HQ Common Stock. The Toys HQ Common Stock
to be issued and initially reserved for issuance pursuant to the transactions
contemplated herein shall have been approved for listing, upon official notice
of issuance, by the New York Stock Exchange.
3.4 Filings. Prior to the Effective Time, the Surviving
Corporation shall cause a certified copy of this Agreement to be executed and
filed with the Delaware Secretary of State. Prior to the Effective Time, to
the extent necessary to effectuate the
8
<PAGE>
amendments to the certificates of incorporation of the Surviving Corporation
and Toys HQ contemplated by this Agreement, each of the Surviving Corporation
and Toys HQ shall cause to be filed with the Delaware Secretary of State such
certificates or documents required to give effect thereto.
4. Miscellaneous.
4.1 Amendment. At any time prior to the Effective Time, the
parties hereto may, to the extent permitted by the DGCL, by written agreement
amend, modify or supplement any provision of this Agreement.
4.2 Termination. This Agreement may be terminated and the
Merger abandoned by the Board of Directors or duly authorized committees
thereof of Toys "R" Us at any time prior to the filing of the certified copy
of this Agreement with the Delaware Secretary of State.
4.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such State.
4.4 Headings. The headings set forth herein are for
convenience only and shall not be used in interpreting the text of the section
in which they appear.
9
<PAGE>
4.5 Counterparts. This Agreement may be executed in one or more
counterparts which together shall constitute a single agreement.
IN WITNESS WHEREOF, Toys "R" Us, Toys HQ and TRU Interim, pursuant
to the approval and authority duly given by resolutions adopted by their
respective Boards of Directors, have caused this Agreement to be executed as
of the date first above written by their respective officers thereunto duly
authorized.
TOYS "R" US, INC.
By: /s/ Louis Lipschitz
Louis Lipschitz
Senior Vice President - Finance
and Chief Financial Officer
TOYS "R" US-HEADQUARTERS, INC.
By: /s/ Louis Lipschitz
Louis Lipschitz
Senior Vice President - Finance
and Chief Financial Officer
TRU INTERIM, INC.
By: /s/ Louis Lipschitz
Louis Lipschitz
President
10
<PAGE>
Exhibit A
Directors and Officers of Toys "R" Us-Delaware, Inc. (f/k/a Toys "R" Us, Inc.)
- ------------------------------------------------------------------------------
Michael Goldstein Director; Vice Chairman of the Board and
Chief Executive Officer
Robert C. Nakasone Director; President and Chief Operating
Officer
Louis Lipschitz Director; Senior Vice President - Finance
and Chief Financial Officer; Assistant
Secretary
Michael P. Miller Senior Vice President - Real Estate
Jeffrey S. Wells Senior Vice President - Human Resources
Gayle C. Aertker Vice President - Real Estate
Jon W. Kimmins Vice President - Treasurer
Joseph J. Lombardi Vice President - Controller
Eric A. Swartwood Vice President - Architecture and
Construction
Michael L. Tumolo Vice President - Counsel; Assistant
Secretary
Peter W. Weiss Vice President - Taxes; Assistant
Secretary
Andre Weiss Secretary
Steven Taplits Assistant Secretary
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
TOYS "R" US, INC.
Toys "R" Us, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The name of the Corporation is TOYS "R" US, INC. and the
date of filing of its original Certificate of Incorporation with the Secretary
of State of the State of Delaware was October 26, 1993. The name under which
the Corporation was formed is Toys "R" Us-Headquarters, Inc.
2. This Restated Certificate of Incorporation was duly adopted
in accordance with Section 245 of the General Corporation Law of the State of
Delaware.
3. This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Certificate of
Incorporation of the Corporation as heretofore amended or supplemented, and
there is no discrepancy between those provisions and the provisions of this
Restated Certificate of Incorporation.
4. The text of the Certificate of Incorporation of the
Corporation as heretofore amended or supplemented is hereby restated, without
amendment or change, to read in its entirety as follows:
"FIRST. The name of the Corporation is TOYS "R" US, INC.
SECOND. The address of the Corporation's registered office in the
State of Delaware is 1013 Centre Road, Wilmington, New Castle County, Delaware
19805. The name of its registered agent at such address is the Prentice-Hall
Corporation System, Inc.
THIRD. The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH. The aggregate number of shares which the Corporation
shall have the authority to issue is Six Hundred Fifty Million (650,000,000)
shares of Common Stock, par value $.10 a share.
FIFTH. In all elections of directors of the Corporation, each
holder of record of Common Stock shall be entitled to as many votes as shall
equal the number of votes which
<PAGE>
(except for this provision as to cumulative voting) he would be entitled to
cast for the election of directors with respect to his shares of stock
multiplied by the number of directors to be elected by him, and he may cast
all of such votes for a single director or may distribute them among the
number to be voted for, or for any two or more of them, as he may see fit.
Election of directors need not be by written ballot.
SIXTH. The Board of Directors is authorized to adopt, amend, or
repeal By-Laws of the Corporation.
SEVENTH. Any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (whether
or not by or in the right of the Corporation) by reason of the fact that he is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall be entitled to be indemnified by the Corporation to the
extent permitted by law against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement incurred by him in connection
with such action, suit or proceeding. Such right of indemnification shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
EIGHTH. Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as
the case may be, to be summoned in such manner as the said court directs. If
a majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may
be, and also on this Corporation.
NINTH. No director of the Corporation shall be liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or
2
<PAGE>
its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit."
5. This Restated Certificate of Incorporation was duly adopted
by the board of directors of the Corporation in accordance with Section 245 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to
be signed by Louis Lipschitz, its Senior Vice President-Finance and Chief
Financial Officer, and attested by Andre Weiss, its Secretary, on the 1st day
of January, 1996.
TOYS "R" US, INC.
By: /s/ Louis Lipschitz
Louis Lipschitz
Senior Vice President-
Finance and Chief
Financial Officer
ATTEST:
/s/ Andre Weiss
Andre Weiss
Secretary
3
EXHIBIT 3.2
BY-LAWS
of
TOYS "R" US, INC.
(As Amended and Restated
effective January 1, 1996)
<PAGE>
TOYS "R" US, INC.
A Delaware corporation
BY-LAWS
________________________________
ARTICLE I
STOCKHOLDERS
Section 1.1 Annual Meeting. An annual meeting of stockholders
for the purpose of electing directors and of transacting such other business
as may come before it shall be held each year at such date, time and place,
either within or without the State of Delaware, as may be specified by the
Board of Directors.
Section 1.2 Special Meetings. Special meetings of stockholders
for any purpose or purposes may be held at any time upon call of the Chairman
of the Board, the President, or a majority of the Board of Directors, at such
time and place either within or without the State of Delaware as may be stated
in the call and notice. A special meeting of stockholders shall be called by
the President upon the written request, stating time, place and the purpose or
purposes of the meeting, of stockholders who together own of record a majority
of the outstanding stock entitled to vote at such meeting.
Section 1.3 Notice of Meetings. Notice of Stockholders meetings,
stating the place, date and hour thereof, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
given by the Chairman of the Board, the President, any Vice President, or the
Secretary, to each stockholder of record entitled to vote thereat at least ten
days but not more than sixty days before the date of the meeting, unless a
different period is prescribed by law.
Section 1.4 Quorum. Except as otherwise provided by law, the
certificate of incorporation, or these By-Laws, at any meeting of
stockholders, the holders of a majority of the outstanding shares of stock
entitled to vote at the meeting and, where a class vote is required by law or
the certificate of incorporation, a majority of the outstanding shares of each
class of stock entitled to a class vote, shall be present or represented by
proxy in order to constitute a quorum for the transaction of business. In the
absence of a quorum, a majority in interest of the stockholders present or the
chairman of the meeting may adjourn the meeting from time to time in the
manner provided in Section 1.5 of these By-Laws until a quorum shall attend.
The absence from any meeting of the number of shares
<PAGE>
required by law, the certificate of incorporation, or these By-Laws for action
upon any given matter shall not prevent action at such meeting upon any other
matter or matters which may properly come before the meeting, if the number of
shares required in respect of such other matters shall be present.
Section 1.5 Adjournment. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjournment meeting, the Corporation may transact any business
which might have been transacted at the original meeting. If the adjournment
is for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
Section 1.6 Organization. The Chairman of the Board, or in his
absence the President, or in their absence any Vice President, shall call to
order meetings of stockholders and shall act as chairman of such meetings.
The Board of Directors, or if the Board fails to act, the Stockholders may
appoint any stockholder or any director or officer of the Corporation to act
as chairman of any meeting in the absence of the Chairman of the Board, the
President and a Vice President.
The Secretary of the Corporation shall act as secretary of all
meetings of stockholders, but in the absence of the Secretary, the chairman of
the meeting may appoint any other person to act as secretary of the meeting.
Section 1.7 Voting. Except as otherwise provided by law, the
certificate of incorporation, or these By-Laws, at any meeting duly called and
held at which a quorum is present, a majority of the votes cast at such
meeting upon a given question by the holders of outstanding shares of stock of
all classes of stock of the Corporation entitled to vote thereon who are
present in person or by proxy shall decide such question.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Number, Term of Office and Notice of Nomination. The
business, property and affairs of the Corporation shall be managed and
controlled by a Board of eleven directors; provided, however, that the Board,
by resolution adopted by vote of a majority of the then authorized number of
directors, may increase or decrease the number of directors. The
2
<PAGE>
directors shall be elected at the annual meeting of stockholders, and serve
(subject to the provisions of Article IV) until the next succeeding annual
meeting of stockholders and until the election and qualification of their
respective successors.
Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election of
directors. Nominations by any stockholder shall be made by notice in writing,
delivered or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days prior
to any meeting of the stockholders called for the election of directors;
provided, however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed, as
prescribed, to the Secretary of the Corporation not later than the close of
the tenth day following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors may be made at any time and shall be given by the Chairman on behalf
of the Board.
Each notice under the preceding paragraph shall set forth (i) the
name, age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment of each
such nominee, and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so declare to
the meeting and the effective nomination shall be disregarded.
Section 2.2 Meetings. The annual meeting of the Board of
Directors, for the election of officers and the transaction of such other
business as may come before the meeting, shall be held without notice at the
same place as, and immediately following, the annual meeting of the
stockholders.
Regular meetings of the Board of Directors may be held without
notice at such time and place as shall from time to time be determined by the
Board.
Special meetings of the Board of Directors shall be held at such
time and place as shall be designated in the notice of the meeting whenever
called by the Chairman of the Board, the President, or two of the directors
then in office.
Section 2.3 Notice of Special Meetings. The Secretary, or in his
absence any other officer of the Corporation, shall give each director notice
of the time and
3
<PAGE>
place of holding of special meetings of the Board of Directors by mail at
least five days before the meeting, or by telegram, cable or radiogram or
personal service at least two days before the meeting. Unless otherwise
stated in the notice thereof, any and all business may be transacted at any
meeting without specification of such business in the notice.
Section 2.4 Quorum and Organization of Meetings. A majority of
the total number of members of the Board of Directors as constituted from time
to time shall constitute a quorum for the transaction of business, but if at
any meeting of the Board of Directors there shall be less than a quorum
present, a majority of those present may adjourn the meeting from time to
time, and the meeting may be held as adjourned without further notice or
waiver. Except as otherwise provided by law, the certificate of
incorporation, or these By-Laws, a majority of the directors present at any
meeting at which a quorum is present may decide any question brought before
such meeting. Meetings shall be presided over by the Chairman of the Board,
or in his absence a Vice Chairman, or by such other person as may be selected
by the directors. The Secretary of the Corporation shall act as secretary of
the meeting, but in his absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
Section 2.5 Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. A majority of the total number of members of a Committee shall
constitute a quorum for the transaction of business. The Board may designate
one or more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have power or authority in reference to amending the
certificate of incorporation of the Corporation, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of dissolution, or amending these By-Laws; and, unless the
resolution expressly so provided, no such committee shall have
4
<PAGE>
the power or authority to declare a dividend or to authorize the issuance of
stock. Each committee which may be established by the Board of Directors or
these By-Laws may fix its own rules and procedures. Notice of meetings of
committees, other than of regular meetings provided for by the rules, shall be
given to committee members. All action taken by committees shall be recorded
in minutes of the meetings.
Section 2.6 Action Without Meeting. Nothing contained in these
By-Laws shall be deemed to restrict the power of the directors or members of
any committee to take any action, required or permitted to be taken by them,
without a meeting, in accordance with applicable provisions of law.
Section 2.7 Telephone Meetings. Members of the Board of
Directors, or any committee designated by the Board, may participate in a
meeting of the Board, or committee, by means of conference telephone or
similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to
this Section shall constitute presence in person at such meetings.
ARTICLE III
OFFICERS
Section 3.1 Executive Officers. The executive officers of the
Corporation shall be one or more Vice Chairmen of the Board, a President, one
or more Vice Presidents, a Treasurer and a Secretary, each of whom shall be
elected by the Board of Directors. The Board may also elect or appoint a
Chairman of the Board who shall not be an officer of the Corporation. The
Chairman of the Board and any Vice Chairman shall be a director of the
Corporation. The Board of Directors may elect or appoint such other officers
(including a Controller and one or more Assistant Treasurers and Assistant
Secretaries) as it may deem necessary or desirable, each of whom shall have
such authority, shall perform such duties and shall hold office for such term
as may be prescribed by the Board of Directors from time to time. Any person
may hold at one time two or more offices.
Section 3.2 Powers and Duties. The Chairman of the Board shall
preside at all meetings of the stockholders and of the Board of Directors. In
the absence of the Chairman, a Vice Chairman appointed by the Chairman of the
Board shall perform all the duties of the Chairman. The Vice Chairman (or, if
there shall be two or more Vice Chairmen, a Vice Chairman designated by the
Board of Directors) shall be the chief executive officer of the Corporation.
The officers and agents of the Corporation shall each have such powers and
perform such duties in the management of the business and affairs of the
Corporation as
5
<PAGE>
generally pertain to their respective offices, as well as such powers and
duties as from time to time may be prescribed by the Board of Directors.
ARTICLE IV
RESIGNATIONS, REMOVALS AND VACANCIES
Section 4.1 Resignations. Any director or officer of the
Corporation, or any member of any committee, may resign at any time by giving
written notice to the Board of Directors, the President or the Secretary of
the Corporation. Any such resignation shall take effect at the time specified
therein or, if the time be not specified therein, then upon receipt thereof.
The acceptance of such resignation shall not be necessary to make it
effective.
Section 4.2 Removals. The Board of Directors, at any meeting
thereof, or by written consent, may, to the extent permitted by law, at any
time, remove with or without cause from office or terminate the employment of
any officer or member of any committee. Except as provided by law or the
certificate of incorporation, the holders of a majority of the shares entitled
to vote at an election of directors may remove any director with or without
cause; provided, however, that if less than the entire Board is to be removed,
no director may be removed without cause if the votes cast against his removal
would be sufficient to elect him if voted cumulatively at an election of the
entire Board.
Section 4.3 Vacancies. Except as provided by law or the
certificate of incorporation, any vacancy in the office of any director or
officer through death, resignation, removal, disqualification or other cause,
and any additional directorship resulting from increase in the number of
directors, may be filled at any time by a majority of the directors then in
office (even though less than a quorum remains) or by the stockholders, and,
subject to the provisions of this Article, the person so chosen shall hold
office until his successor shall have been chosen and shall have qualified; or
if the person so chosen is a director elected to fill a vacancy, he shall hold
office for the unexpired term of his predecessor.
ARTICLE V
CAPITAL STOCK
Section 5.1 Stock Certificates. The certificates for shares of
the capital stock of the Corporation shall be in such
6
<PAGE>
form as shall be prescribed by law and approved, from time to time, by the
Board of Directors.
Section 5.2 Transfer of Shares. Shares of the capital stock of
the Corporation may be transferred on the books of the Corporation only by the
holder of such shares or by his duly authorized attorney, upon the surrender
to the Corporation or its transfer agent of the certificate for such shares
properly endorsed.
Section 5.3 Fixing Record Date. In order that the Corporation
may determined the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than sixty nor
less ten days before the date of such meeting, nor more than sixty days prior
to any other action.
Section 5.4 Regulations. The Board of Directors shall have power
and authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer, registration, cancellation and replacement of
certificates for shares of stock of the Corporation.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Corporate Seal. The corporate seal shall have
inscribed thereto the name of the Corporation and shall be in such form as may
be approved from time to time by the Board of Directors.
Section 6.2 Fiscal Year. The fiscal year of the Corporation
shall end on the Saturday which falls nearest to the last day of January in
each year.
Section 6.3 Notice and Waivers Thereof. Whenever any notice as
required by law, the certificate of incorporation, or these By-Laws to be
given to any stockholder, director, or officer, such notice, except as
otherwise revised by law, may be given personally or by mail, or, in the case
of directors or officers, by telegram, cable or radiogram, addressed to such
address as appears on the books of the Corporation. Any notice given by
telegram, cable or radiogram shall be deemed to have been given when it shall
have been delivered for transmission and any notice given by mail shall be
deemed to have been given when
7
<PAGE>
it shall have been deposited in the United States mail with postage there on
prepaid.
Whenever a notice is required to be given by law, the certificate
of incorporation, or these By-Laws, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the meeting
or the time stated therein, shall be deemed equivalent in all respects to such
notice.
Section 6.4 Stock of Other Corporations or Other Interests.
Unless otherwise directed by the Board of Directors, the Chairman of the
Board, the President, the Secretary and such attorneys or agents of the
Corporation as may be from time to time authorized by the Board of Directors,
the Chairman of the Board, or the President, shall have full power and
authority on behalf of this Corporation to attend and to act and vote in
person or by proxy at any meeting of the holders of securities of any
corporation or other entity in which this Corporation may own or hold shares
or other securities, and at such meetings shall possess and may exercise all
the rights and powers incident to the ownership of such shares or other
securities which this Corporation, as the owner or holder thereof, might have
possessed and exercised if present. The Chairman of the Board, the President,
or the Secretary, or such attorneys or agents, may also execute and deliver on
behalf of the Corporation powers of attorney, proxies, consents, waivers, and
other instruments relating to the shares or securities owned or held by this
Corporation.
Section 6.5 Periodic Reports. The Corporation shall send
periodic reports to each of its stockholders, not less than once each year,
which shall include profit and loss statements and balance sheets prepared in
accordance with generally accepted accounting principles.
ARTICLE VII
AMENDMENTS
The holders of shares entitled at the time to vote for the
election of directors shall have power to adopt, alter, amend or repeal the
By-Laws of the Corporation by vote of not less than a majority of such shares,
and the Board of Directors shall have power equal in all respects to that of
the stockholders to adopt, alter, amend or repeal the By-Laws by vote of not
less than a majority of the entire Board. However, any By-Law adopted by the
Board may be amended or repealed by vote of the holders of a majority of the
shares entitled at the time to vote for the election of directors.
8
EXHIBIT 10.11
Amendment to Toys "R" Us, Inc. Management Incentive Compensation Plan
---------------------------------------------------------------------
1. The definition of "Covered Employee" under the Toys "R" Us, Inc.
Management Incentive Compensation Plan (the "Incentive Plan") is hereby
amended to read as follows:
"Covered Employee" shall mean any Participant who is designated by
the Committee, prior to the Determination Date (defined below), to be a
"covered employee" within the meaning of Section 162(m) of the Code.
2. Section 7 of the Incentive Plan is hereby amended to read as
follows:
7. Payment of Awards
Subject to the limitations of Section 6 hereof, each Participant
shall receive, as soon as practicable after the amount of such
Participant's Award for a Fiscal year has been determined and certified
in accordance with Section 5 hereof, the amount of such Award in cash;
provided, however, that the Committee may, in its discretion, provide
that an Award will be deferred and paid in cash or common stock of the
Company on terms and conditions determined by the Committee and
consistent with preserving the deductibility of Awards under Section
162(m) of the Code.
EXHIBIT 10.13
TOYS "R" US, INC.
Partnership Group Deferred Compensation Plan
<PAGE>
TOYS "R" US, INC.
Partnership Group Deferred Compensation Plan
Page
----
1. Purposes 1
2. Definitions 1
3. Administration 3
4. Participation 3
5. Deferrals 4
6. Deferral Accounts 5
7. Deferral of Certain Stock-Denominated Awards 6
8. Settlement of Deferral Accounts 7
9. Provisions Relating to Section 16 of the Exchange Act
and Section 162(m) of the Code 8
10. Statements 9
11. Sources of Stock: Limitation on Amount of
Stock-Denominated Deferrals 9
12. Amendment/Termination 9
13. General Provisions 9
14. Effective Date 11
<PAGE>
TOYS "R" US, INC.
Partnership Group Deferred Compensation Plan
1. Purposes. The purposes of this Partnership Group Deferred
Compensation Plan (the "Plan") are to provide certain highly compensated
employees of Toys "R" Us, Inc. (the "Company") and its subsidiaries with the
opportunity to elect to defer receipt of specified portions of compensation and
to have such deferred amounts treated as if invested.
2. Definitions. In addition to the terms defined in Section 1 above,
the following terms used in the Plan shall have the meanings set forth below:
(a) "Administrator" shall mean the Administrative Committee set
forth in Section 3(b) to whom the Committee has delegated the authority to take
action under the Plan, except as may be otherwise required under Section 9.
(b) "Beneficiary" shall mean any person (which may include trusts
and is not limited to one person) who has been designated by the Participant in
his or her most recent written beneficiary designation filed with the Company to
receive the benefits specified under the Plan in the event of the Participant's
death. If no Beneficiary has been designated who survives the Participant's
death, then Beneficiary means any person(s) entitled by will or, in the absence
thereof, the laws of descent and distribution to receive such benefits.
(c) "Change in Status" shall mean the merger or consolidation of
the Company with another corporation or the acquisition of the property or stock
of the Company by another corporation, or a separation, reorganization or
liquidation of the Company, in each case only if so determined by a majority of
the members of the Board of Directors of the Company who have served on the
Board for at least two years prior to such event.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended. References to any provision of the Code or regulation (including a
proposed regulation) thereunder shall include any successor provisions or
regulations.
(e) "Committee" shall mean the Management Compensation and Stock
Option Committee of the Board of Directors of the Company or any other directors
of the Company designated as the Committee. Except as may be otherwise required
under Section 9 or by applicable law, any function of the Committee may be
delegated to the Administrator.
1
<PAGE>
(f) "Deferral Account" shall mean the account or subaccount
established and maintained by the Company for specified deferrals by a
Participant, as described in Sections 6(a) and 7(a). Deferral Accounts will be
maintained solely as bookkeeping entries by the Company to evidence unfunded
obligations of the Company.
(g) "Disability" shall mean termination of employment with the
Company or a subsidiary because of the Participant's long term or total
disability as determined by the Committee in its sole discretion. The decision
of the Committee shall be final and conclusive.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended. References to any provision of the Exchange Act or rule thereunder
include any successor provisions or rules.
(i) "Participant" shall mean any employee of the Company or any
subsidiary (i) who is designated by the Committee as a member of the Partnership
Group, (ii) who participates or makes an election to participate in the Plan or
whose eligible compensation or awards are mandatorily deferred by the Committee
under the Plan and (iii) who receives compensation or an award that is subject
to income tax in the United States.
(j) "Retirement" shall mean a Participant's termination of
employment with the Company or a subsidiary either (i) on a voluntary basis by
a Participant who is at least 60 years of age and has at least 15 years of
service with the Company or a subsidiary or (ii) otherwise with the written
consent of the Committee in its sole discretion. The decision of the Committee
shall be final and conclusive.
(k) "Stock" shall mean Toys "R" Us, Inc. Common Stock, $0.10 par
value, or any other equity securities of the Company designated by the
Committee.
(l) "Trust" shall mean the trust or trusts established by the
Company as part of the Plan; provided, however, that the assets of such trusts
shall remain subject to the claims of the general creditors of the Company.
(m) "Trustee" shall mean the trustee of the Trust.
(n) "Trust Agreement" shall mean the agreement entered into between
the Company and the Trustee to carry out the purposes of the Plan, as amended or
restated from time to time.
(o) "Valuation Date" shall mean each business day.
2
<PAGE>
3. Administration.
(a) Committee Authority. The Committee or the Administrator
(subject to the ability of the Committee to restrict the Administrator) shall
administer the Plan in accordance with its terms, and shall have all powers
necessary to accomplish such purpose, including the power and authority to
construe and interpret the Plan, to define the terms used herein, to prescribe,
amend and rescind rules and regulations, agreements, forms, and notices relating
to the administration of the Plan, and to make all other determinations
necessary or advisable for the administration of the Plan. Any actions of
the Committee or the Administrator with respect to the Plan shall be
conclusive and binding upon all persons interested in the Plan, except that
any action of the Administrator will not be binding on the Committee. The
Committee and Administrator may each appoint agents and delegate thereto
powers and duties under the Plan, except as otherwise limited by the Plan.
(b) Administrator. The Administrative Committee shall consist of
such number of members as shall be determined by the Committee, each of whom
shall be appointed by, shall remain in office at the will of, and may be
removed, with or without cause, by the Committee. Any member of the
Administrative Committee may resign at any time. No member of the
Administrative Committee shall be entitled to act on or decide any matter
relating solely to himself or herself or any of his or her rights or benefits
under the Plan. The members of the Administrative Committee shall not
receive any special compensation for serving in their capacities as members
of the Administrative Committee but shall be reimbursed for any reasonable
expenses incurred in connection therewith. No bond or other security need
be required of the Administrative Committee or any member thereof in any
jurisdiction.
(c) Limitation of Liability. Each member of the Committee and the
Administrator shall be entitled to, in good faith, rely or act upon any report
or other information furnished to him or her by any officer or other employee of
the Company or any subsidiary, the Company's independent certified public
accountants, or any executive compensation consultant, legal counsel, or other
professional retained by the Company to assist in the administration of the
Plan. To the maximum extent permitted by law, no member of the Committee or the
Administrator, nor any person to whom ministerial duties have been delegated,
shall be liable to any person for any action taken or omitted in connection with
the interpretation and administration of the Plan. To the maximum extent
permitted by law, the Company shall indemnify the members of the Committee and
the Administrator against any and all claims, losses, damages, expenses,
including any counsel fees and costs, incurred by them, and any liability,
including any amounts paid in settlement with their approval, arising from their
action or failure to act.
4. Participation. The Administrator will notify each employee of his
or her participation or eligibility to participate in the Plan not later than 30
days (or such lesser period as may be practicable in the circumstances) prior to
any deadline for filing an election form.
3
<PAGE>
5. Deferrals. A Participant may elect to defer compensation or awards
which may be in the form of cash, Stock, Stock-denominated awards or other
property to be received from the Company or a subsidiary, including salary,
annual incentive award, long term award, shares received on stock option
exercise and compensation payable under other plans and programs, employment
agreements or other arrangements, or otherwise, as may be provided under the
terms of such plans, programs and arrangements or as designated by the
Committee; provided, however, that a Participant may defer, with respect to
a given year, receipt of only that portion of the Participant's salary,
annual incentive award, long term award, shares received on stock option
exercise and compensation payable under other plans and programs, employment
agreements or other arrangements that exceeds the amount necessary to satisfy
FICA, Medicare and all other applicable withholding taxes imposed on the
wages of such Participant from the Company and its subsidiaries. In addition
to such limitation, and any terms and conditions of deferral set forth under
plans, programs or arrangements from which receipt of compensation or awards
is deferred, the Committee may impose limitations on the amounts permitted to
be deferred and other terms and conditions on deferrals under the Plan. Any
such limitations, and other terms and conditions of deferral, shall be set
forth in the rules relating to the Plan or election forms, other forms, or
instructions published by the Committee and/or the Administrator. In
addition, the Committee may mandate deferral of payment in accordance with the
Plan of all or a portion of the compensation or awards to be received under
plans, programs and arrangements of the Company.
(a) Elections. Once an election form, properly completed, is
received by the Administrator, the elections of the Participant shall be
irrevocable; provided, however, that the Committee and/or the Administrator may,
in its discretion, permit a Participant to elect a further deferral of amounts
credited to a Deferral Account by filing a later election form; provided further
that, unless otherwise approved by the Committee, any election to further defer
amounts credited to a Deferral Account must be made at least one (1) year prior
to the date such amounts would otherwise be payable.
(b) Date of Election. An election to defer compensation or awards
hereunder must be received by the Administrator prior to the date specified by
the Administrator; provided, however, that, unless otherwise approved by the
Committee, any elections to defer (i) salary shall be made prior to the service
period during which such salary is earned, (ii) Stock or Stock-denominated
awards shall be made at least six (6) months prior to the exercise of Stock
options or one (1) year prior to the vesting of any Stock or
Stock-denominated awards, whichever is later, and (iii) incentive awards
shall be made on or prior to September 30 of each calendar year. Under no
circumstances may a Participant defer compensation or awards to which the
Participant has attained, at the time of deferral, a legally enforceable
right to current receipt of such compensation or awards.
4
<PAGE>
6. Deferral Accounts. The following provisions will apply to Deferral
Accounts other than those established under Section 7:
(a) Establishment; Crediting of Amounts Deferred. One or more
Deferral Accounts will be established for each Participant, as determined by the
Administrator. The amount of compensation or awards deferred with respect to
each Deferral Account will be credited to such Account as of the date on which
such amounts would have been paid to the Participant but for the Participant's
election to defer receipt hereunder. The amounts of hypothetical income and
appreciation and depreciation in value of such account will be credited and
debited to such Account from time to time. Unless otherwise determined by the
Administrator, cash amounts credited to a Deferral Account shall be deemed
invested in a hypothetical investment as of the date of deferral.
(b) Hypothetical Investment Vehicles. Subject to the provisions
of Sections 6(c) and 9, amounts credited to a Deferral Account shall be deemed
to be invested in one or more investment vehicles as may be specified from time
to time by the Administrator. Subject to the authority of the Administrator to
disregard the directions of any Participant, each affected Participant shall be
given the opportunity to express a preference regarding the allocation of his or
her Deferral Account among such hypothetical investment vehicles. The
Administrator may change or discontinue any hypothetical investment vehicle
available under the Plan in its discretion; provided, however, that subject to
the authority of the Administrator to disregard the directions of any
Participant, each affected Participant shall be given the opportunity to
express a preference regarding the reallocation of his or her Deferral
Account deemed invested in the discontinued investment vehicle among the
other hypothetical investment vehicles, including any replacement vehicle.
(c) Allocation and Reallocation of Hypothetical Investments.
Subject to the rules established by the Administrator, a Participant may revise
his or her preference regarding the allocation of amounts credited to his or
her Deferral Account as of any Valuation Date but not more often than once in
any calendar quarter, by filing with the Administrator a notice, in such form as
may be specified by the Administrator, not later than 15 days preceding such
Valuation Date. The Committee or the Administrator may, in its discretion,
restrict allocation or reallocation by specified Participants into or out of
specified investments vehicles or specify minimum amounts that may be allocated
or reallocated.
(d) Trusts. The Committee may, in its discretion, establish one
or more Trusts (including sub-accounts under such Trusts), and deposit therein
amounts of cash, Stock, or other property not exceeding the amount of the
Company's obligations with respect to a Participant's Deferral Account
established under this Section 6. In such case, the amounts of hypothetical
income and appreciation and depreciation in value of such Deferral Account shall
be equal to the actual income on, and appreciation and depreciation of, the
assets in such Trusts, reduced by charges
5
<PAGE>
against such assets to reflect all or a portion, if any, as specified by the
Committee, of the Company's cost of funds (as determined by the Company)
resulting from payment of taxes on the income on and realized appreciation of
trust assets prior to the time the Company is entitled to a tax deduction for
payment of the Deferral Account. Other provisions of this Section 6
notwithstanding, the timing of allocations and reallocations of assets in such
a Deferral Account, and the investment vehicles available with respect to such
Deferral Account, may be varied to reflect the timing of actual investments of
the assets of such Trust and the actual investments available to such Trust.
7. Deferral of Certain Stock-Denominated Awards.
(a) Establishment. Subject to any terms and conditions imposed by
the Committee, Participants may elect to defer, under the Plan, awards
denominated in Stock specified by the Committee or Administrator. In connection
with such deferral of a Stock-denominated award, a Deferral Account shall be
established for such Participant and a Trust (including sub-accounts under such
Trust) will also be established, on terms determined by the Committee, into
which the Company shall deposit a number of shares of Stock, rounded to the
nearest whole share, equal to the number of shares subject to such deferred
award. In such case, the amounts of hypothetical income and appreciation and
depreciation in value of such Deferral Account shall be equal to the actual
income on, and appreciation and depreciation of, the assets in the Trust,
including charges against such assets to reflect all or a portion, if any, as
specified by the Committee, of the Company's cost of funds (as determined by
the Company) resulting from payment of taxes on the income on and realized
appreciation of Trust assets prior to the time the Company is entitled to a
tax deduction for payment of the Deferral Account.
(b) Investment of Trust Assets. The Trustee of each Trust, which
shall be a party not under the control of the Company, shall be authorized, upon
written instructions received from the Administrator or investment manager
appointed by the Administrator, to invest and reinvest the assets of the Trust
in accordance with the applicable Trust Agreement, including the disposition of
such Stock and reinvestment of the proceeds in one or more investment vehicles
designated by the Administrator; provided that, except as may be permitted under
Section 7(c), no such disposition shall be made until the date that the shares
of Stock subject to the deferred award are no longer subject to a risk of
forfeiture by the Participant. In no event shall a Participant who is subject
to Section 16(a) of the Exchange Act have the right to direct investments of
amounts credited to such Deferral Account.
(c) Stock-for-Stock Exercise. In accordance with procedures to be
established by the Committee from time to time, a Participant may submit a
request to the Administrator to surrender Stock allocated to his or her Deferral
Account to pay the purchase price of any stock options of the Company granted to
the Participant under
6
<PAGE>
another plan, program or arrangement; provided, however, that the number of
shares of Stock otherwise deliverable to the Participant upon the exercise of
such options equal to the number of shares of Stock surrendered shall
automatically be deposited into the Trust and remain subject to the terms and
conditions of the Stock so surrendered.
8. Settlement of Deferral Accounts.
(a) Form of Payment. The Company shall settle a Participant's
Deferral Account, and discharge all of its obligations to pay deferred
compensation under the Plan with respect to such Deferral Account, by payment of
cash or, in the discretion of the Committee, by delivery of other assets having
a fair market value equal to the amount of cash otherwise payable; provided,
however, that Stock may be delivered in settlement of any Stock-denominated
award deferred under the Plan if such award has been continuously deemed
invested in Stock under the Plan, except that Stock may not be delivered to a
Participant who is then subject to Section 16(a) of the Exchange Act.
(b) Forfeited Shares. To the extent that Stock (i) is deposited
in a Trust pursuant to Section 7 in connection with a deferral of Stock or a
Stock-denominated award under another plan, program, employment agreement or
other arrangement and (ii) is forfeited pursuant to the terms of such plan,
program, agreement or arrangement, the Participant shall not be entitled to the
value of such Stock and other property related thereto (including without
limitation, dividends and distributions thereon). Any Stock or
Stock-denominated awards and other property forfeited shall be returned to the
Company.
(c) Timing of Payments. Payments in settlement of a Deferral
Account shall be made as soon as practicable after the date or dates (including
upon the occurrence of specified events), and in such number of installments, as
may be directed by the Participant in his or her election relating to such
Deferral Account, or earlier in the event of termination of employment by the
Participant in the following circumstances:
(i) In the event of termination of employment for reasons other
than Retirement or Disability, a single lump sum payment in settlement of any
Deferral Account (including a Deferral Account with respect to which one or more
installment payments have previously been made) shall be made as promptly as
practicable following the next Valuation Date, unless otherwise determined by
the Administrator; or
(ii) In the event of a Change in Status, payments in settlement of
any Deferral Account (including a Deferral Account with respect to which one or
more installment payments have previously been made) shall be made within
fifteen (15) business days following such Change in Status.
7
<PAGE>
(d) Financial Emergency and Other Payments. Other provisions of
the Plan (except Section 9) notwithstanding, if, upon the written application of
a Participant, the Committee determines that the Participant has a financial
emergency of such a substantial nature and beyond the individual's control that
payment of amounts previously deferred under the Plan is warranted, the
Committee may direct the payment to the Participant of all or a portion of the
balance of a Deferral Account and the time and manner of such payment, and the
Committee may direct such payments in other circumstances if, in the exercise
of its independent judgment, it determines that circumstances beyond the
individual's control warrant such action.
9. Provisions Relating to Section 16 of the Exchange Act and Section
162(m) of the Code.
(a) Compliance with Section 16. With respect to a Participant who
is then subject to the reporting requirements of Section 16(a) of the Exchange
Act:
(i) Any function of the Committee under the Plan relating to such
Participant shall be performed solely by the Committee, if and to the extent
required to ensure the availability of an exemption under Rule 16b-3 or
exclusion under Rule 16a-1(c) for such Participant with respect to the Plan.
(ii) The provisions of Section 6(c) notwithstanding, no such
Participant may reallocate amounts credited to a Deferral Account into or out of
a Stock-denominated or Stock equivalent investment vehicle.
(iii)To the extent necessary so that transactions by and rights of
such a Participant under the Plan are excluded from reporting under Rule
16a-1(c) (unless acknowledged by the Participant in writing with respect to a
specified transaction not to be excluded), if any provision of this Plan or
any rule, election form or other form, or instruction does not comply with
the requirements of such Rule as then applicable to such transaction or right
under the Plan, such provision shall be construed or deemed amended to the
extent necessary to conform to such requirements.
(b) Compliance with Code Section 162(m). It is the intent of the
Company that any compensation (including any award) deferred under the Plan by
a person who is, with respect to the year of payout, deemed by the Committee to
be a "covered employee" within the meaning of Code Section 162(m) and
regulations thereunder, which compensation constitutes either "qualified
performance-based compensation" within the meaning of Code Section 162(m) and
regulations thereunder or compensation not otherwise subject to the
limitation on deductibility under Section 162(m) and regulations thereunder,
shall not, as a result of deferral hereunder, become compensation with
respect to which the Company in fact would not be entitled to a tax deduction
under Code Section 162(m). Accordingly, unless otherwise determined by the
Committee, if any compensation would become so disqualified under Section
162(m) as a result of deferral hereunder, the terms of such deferral shall be
8
<PAGE>
automatically modified to the extent necessary to ensure that the compensation
would not, at the time of payout, be so disqualified.
10. Statements. The Administrator will furnish statements to each
Participant reflecting the amount credited to a Participant's Deferral Accounts
and transactions therein not less frequently than once each calendar year.
11. Sources of Stock: Limitation on Amount of Stock-Denominated
Deferrals. If Stock is deposited under the Plan in a rabbi trust pursuant to
Section 7 in connection with a deferral of a Stock-denominated award under
another plan, program, employment agreement or other arrangement that provides
for the issuance of shares, the shares so deposited shall be deemed to have
originated, and shall be counted against the number of shares reserved, under
such other plan, program or arrangement. The number of Stock equivalents
credited to such Deferral Accounts shall in no event exceed the number of shares
subject to the Stock-denominated awards deferred under the Plan. The number of
Stock equivalents otherwise credited to Deferral Accounts of Participants who
are subject to Section 16(a) of the Exchange Act shall not exceed 10% of the
Stock outstanding at any time. Stock actually delivered in settlement of
Deferral Accounts shall be originally issued shares or treasury shares, in the
discretion of the Committee.
12. Amendment/Termination. The Committee may, with prospective or
retroactive effect, amend, alter, suspend, discontinue, or terminate the Plan at
any time without the consent of Participants, stockholders, or any other person;
provided, however, that, without the consent of a Participant, no such action
shall materially and adversely affect the rights of such Participant with
respect to any rights to payment of amounts credited to such Participant's
Deferral Account. Notwithstanding the foregoing, the Committee may, in its sole
discretion, terminate the Plan and distribute to Participants the amounts
credited to their Deferral Accounts.
13. General Provisions.
(a) Limits on Transfer of Awards. Other than by will or the laws of
descent and distribution, no right, title or interest of any kind in the Plan
shall be transferable or assignable by a Participant or his or her Beneficiary
or be subject to alienation, anticipation, encumbrance, garnishment, attachment,
levy, execution or other legal or equitable process, nor subject to the debts,
contracts, liabilities or engagements, or torts of any Participant or his or her
Beneficiary. Any attempt to alienate, sell, transfer, assign, pledge, garnish,
attach or take any other action subject to legal or equitable process or
encumber or dispose of any interest in the Plan shall be void.
(b) Receipt and Release. Payments (in any form) to any Participant or
Beneficiary in accordance with the provisions of the Plan shall, to the extent
thereof, be in full satisfaction of all claims for the compensation or awards
deferred and relating to
9
<PAGE>
the Deferral Account to which the payments relate against the Company or any
subsidiary thereof, the Committee, or the Administrator, and the Administrator
may require such Participant or Beneficiary, as a condition to such payments, to
execute a receipt and release to such effect.
(c) Unfunded Status of Awards; Creation of Trusts. The Plan is intended
to constitute an "unfunded" plan for deferred compensation and Participants
shall rely solely on the unsecured promise of the Company for payment
hereunder. With respect to any payment not yet made to a Participant under the
Plan, nothing contained in the Plan shall give a Participant any rights that
are greater than those of a general unsecured creditor of the Company;
provided, however, that the Committee may authorize the creation of Trusts,
including but not limited to the Trusts referred to in Sections 6 and 7
hereof, or make other arrangements to meet the Company's obligations under the
Plan, which Trusts or other arrangements shall be consistent with the
"unfunded" status of the Plan unless the Committee otherwise determines with
the consent of each affected Participant.
(d) Compliance. A Participant in the Plan shall have no right to receive
payment (in any form) with respect to his or her Deferral Account until legal
and contractual obligations of the Company relating to establishment of the
Plan and the making of such payments shall have been complied with in full.
In addition, the Company shall impose such restrictions on Stock delivered to
a Participant hereunder and any other interest constituting a security as it
may deem advisable in order to comply with the Securities Act of 1933, as
amended, the requirements of the New York Stock Exchange or any other stock
exchange or automated quotation system upon which the Stock is then listed or
quoted, any state securities laws applicable to such a transfer, any
provision of the Company's Certificate of Incorporation or Bylaws, or any
other law, regulation, or binding contract to which the Company is a party.
(e) Other Participant Rights. No Participant shall have any of the
rights or privileges of a stockholder of the Company under the Plan, including
as a result of the crediting of Stock equivalents or other amounts to a Deferral
Account, or the creation of any Trust and deposit of such Stock therein, except
at such time as Stock may be actually delivered in settlement of a Deferral
Account. No provision of the Plan or transaction hereunder shall confer upon
any Participant any right to be employed by the Company or a subsidiary
thereof, or to interfere in any way with the right of the Company or a
subsidiary to increase or decrease the amount of any compensation payable to
such Participant. Subject to the limitations set forth in Section 13(a)
hereof, the Plan shall inure to the benefit of, and be binding upon, the
parties hereto and their successors and assigns.
(f) Tax Withholding. The Company and any subsidiary shall have the right
to deduct from amounts otherwise payable in settlement of a Deferral Account any
sums that federal, state, local or foreign tax law requires to be withheld with
respect to
10
<PAGE>
such payment. Shares may be withheld to satisfy such obligations in any case
where taxation would be imposed upon the delivery of shares, except that shares
issued or delivered under any plan, program, employment agreement or other
arrangement may be withheld only in accordance with the terms of such plan,
program, employment agreement or other arrangement and any applicable rules,
regulations, or resolutions thereunder.
(g) Governing Law. The validity, construction, and effect of the Plan
and any rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of New York, without giving effect to
principles of conflicts of laws, and applicable provisions of the Delaware
General Corporation Law and federal law.
(h) Limitation. A Participant and his or her Beneficiary shall assume
all risk in connection with any decrease in value of the Deferral Account and
neither the Company, the Committee nor the Administrator shall be liable or
responsible therefor.
(i) Construction. The captions and numbers preceding the sections of the
Plan are included solely as a matter of convenience of reference and are not to
be taken as limiting or extending the meaning of any of the terms and provisions
of the Plan. Whenever appropriate, words used in the singular shall include the
plural or the plural may be read as the singular.
(j) Severability. In the event that any provision of the Plan shall be
declared illegal or invalid for any reason, said illegality or invalidity shall
not affect the remaining provisions of the Plan but shall be fully severable,
and the Plan shall be construed and enforced as if said illegal or invalid
provision had never been inserted herein.
(k) Status. The establishment and maintenance of, or allocations and
credits to, the Deferral Account of any Participant shall not vest in any
Participant any right, title or interest in and to any Plan assets or benefits
except at the time or times and upon the terms and conditions and to the extent
expressly set forth in the Plan and in accordance with the terms of the Trust.
14. Effective Date. The Plan shall be effective as of May 17, 1995.
11
EXHIBIT 10.14
TOYS "R" US, INC.
______________________________________________________________________________
Grantor Trust Agreement
______________________________________________________________________________
<PAGE>
TOYS "R" US, INC.
______________________________________________________________________________
Grantor Trust Agreement
______________________________________________________________________________
Page
----
1. Establishment of Trust. . . . . . . . . . . . . . . . . . . . . . . . 1
2. Payments to Plan Participants and Their Beneficiaries. . . . . . . . .3
3. Trustee Responsibility Regarding Payments When Company is
Insolvent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
4. Payments to Company. . . . . . . . . . . . . . . . . . . . . . . . . .5
5. Investment Authority. . . . . . . . . . . . . . . . . . . . . . . . . 5
6. Disposition of Income. . . . . . . . . . . . . . . . . . . . . . . . .6
7. Accounting by Trustee. . . . . . . . . . . . . . . . . . . . . . . . .6
8. Responsibility of Trustee. . . . . . . . . . . . . . . . . . . . . . .7
9. Compensation and Expenses of Trustee. . . . . . . . . . . . . . . . . 9
10. Resignation and Removal of Trustee. . . . . . . . . . . . . . . . . . 9
11. Appointment of Successor Trustee. . . . . . . . . . . . . . . . . . .10
12. Amendment or Termination. . . . . . . . . . . . . . . . . . . . . . .10
13. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14. Effective Date. . . . . . . . . . . . . . . . . . . . . . . . . . . .12
<PAGE>
TRUST UNDER THE TOYS "R" US, INC.
PARTNERSHIP GROUP DEFERRED COMPENSATION PLAN
(a) This Agreement made as of the first day of October, 1995, by and
between Toys "R" Us, Inc. (Company) and American Express Trust Company, a
Minnesota trust company (Trustee);
(b) WHEREAS, Company has adopted the Toys "R" Us, Inc. Partnership Group
Deferred Compensation Plan (hereinafter called "Plan"); and
(c) WHEREAS, Company has incurred or expects to incur liability under
the terms of such Plan with respect to the individuals participating in such
Plan; and
(d) WHEREAS, Company wishes to establish a trust (hereinafter called
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of Company's creditors in the event of Company's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the Plan(s); and
(e) WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purpose of Title I of the Employee Retirement Income Security Act of 1974
("ERISA"); and
(f) WHEREAS, it is the intention of Company to make contributions to the
Trust to provide itself with a source of funds to assist in the meeting of its
liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
Section 1. Establishment of Trust
(a) Company hereby deposits with Trustee in trust 120,122 Shares (as
defined in subparagraph (f) below), which shall become the principal of the
Trust to be held, administered and disposed of by Trustee as provided in this
Trust Agreement.
(b) Subject to Section 4, the Trust hereby established shall be
irrevocable.
(c) The Trust is intended to be a grantor trust, of which Company is the
grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
1
<PAGE>
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Company and shall be used exclusively for
the uses and purposes of Plan participants and general creditors as herein set
forth. Plan participants and their beneficiaries shall have no preferred claim
on, or any beneficial ownership interest in, any assets of the Trust. Any
rights created under the Plan(s) and this Trust Agreement shall be mere
unsecured contractual rights of Plan participants and their beneficiaries
against Company. Any assets held by the Trust will be subject to the claims of
Company's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with Trustee
to augment the principal to be held, administered and disposed of by Trustee as
provided in this Trust Agreement. Neither Trustee nor any Plan participant or
beneficiary shall have any right to compel such additional deposits.
(f) Such property may consist of shares of the Company's Common Stock,
par value $.10 ("Shares"). If any Shares are contributed to the Trust, the
Company shall, by virtue of such contribution, represent that the Shares are
validly issued, fully paid, nonassessable and transferrable, subject to the
requirements of applicable federal and state securities laws. The Company
represents that the Shares have been registered on a Form S-8 (or another
appropriate registration form) filed with the Securities and Exchange
Commission or the contribution to the Trust is otherwise exempt from
registration under the Securities Act of 1933, as amended. The Company shall
advise the Trustee of any limitations on the resale of the Shares. The
Company shall also use its reasonable efforts to register or qualify resales
of such Shares under the applicable "blue sky" or state securities laws.
(g) Company represents that it shall restrict participation in the
nonqualified plan relating to or supported by this trust to a "select group of
management or highly compensated employees," as that phrase is used in and
defined under Sections 201, 301, and 401 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). Company agrees to indemnify against
and hold Trustee harmless from any and all claims, judgements, settlements and
related costs or damages incurred by the Trustee resulting from Trustee's
reliance on these representations.
Section 2. Payments to Plan Participants and Their Beneficiaries.
(a) The administrator (the "Administrator") appointed for purposes of
the Plan and this Trust by the Management Compensation and Stock Option
Committee of the Company's Board of Directors (the "Committee") shall deliver
to Trustee a schedule (the "Election Schedule") that indicates the deferral
elections attributable with respect to each Plan participant (and his or her
beneficiaries), that provides a formula or other instructions acceptable to
Trustee for determining the amounts so payable, the form in which such amount is
to be paid (as provided for or available under the Plan(s)), and the time of
commencement for payment of such amounts. Except as otherwise
2
<PAGE>
provided herein, Trustee shall make payments to the Plan participants and their
beneficiaries in accordance with such Payment Schedule. The Trustee shall make
provision for the reporting and withholding of any federal, state or local taxes
that may be required to be withheld with respect to the payment of benefits
pursuant to the terms of the Plan(s) and shall pay amounts withheld to the
appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by Company. The Trustee may delegate to the
Company the responsibility for the reporting and withholding as described above.
(b) The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plan(s) shall be determined by Company or such party as it
shall designate under the Plan(s), and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Plan(s).
(c) All payments shall be in cash except that the Trustee may at the
direction of the Administrator, distribute assets held in the Trust other than
in the form of Shares (except as provided below) to the Participants or their
beneficiaries; provided that in the event of a distribution in kind, the
Administrator shall advise the Trustee of the value of the assets distributed
and the Trustee may conclusively rely upon such information without further
inquiry. The foregoing notwithstanding, no such in kind distribution shall be
authorized if and to the extent that such authorization would cause any right of
payment to the Participants or their beneficiaries from the Company to be
deemed a "derivative security" within the meaning of Rule 16a-1(c)(3)
(including paragraph (i) thereunder) under the Securities and Exchange Act of
1934, as amended (the "Exchange Act"). Shares contributed to fund a
Stock-denominated obligation or award may be distributed to a Participant or
his or her beneficiaries pursuant to the Election Schedules unless the
Participant is or has been subject to Section 16 of the Exchange Act, in
which case no payments from the Trust shall be in Shares until such time as
the Participant has not been subject to a transaction which would create a
"short swing transaction" as defined under Section 16 of the Exchange Act.
(d) Company may make payment of benefits directly to Plan participants
or their beneficiaries as they become due under the terms of the Plan(s).
Company shall notify Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance with
the terms of the Plan(s), Company shall make the balance of each such payment
as it falls due. Trustee shall notify Company where principal and earnings
are not sufficient.
Section 3. Trustee Responsibility Regarding Payments to Trust
Beneficiary When Company Is Insolvent.
(a) Trustee shall cease payment of benefits to Plan participants and
their beneficiaries if the Company is Insolvent. Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay
its debts as they
3
<PAGE>
become due, or (ii) Company is subject to a pending proceeding as a debtor under
the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of Company under federal and state law as set forth
below.
(1) The Administrator shall have the duty to inform Trustee in writing of
Company's Insolvency. If a person claiming to be a creditor of Company alleges
in writing to Trustee that Company has become Insolvent, Trustee shall determine
whether Company is Insolvent and, pending such determination, Trustee shall
discontinue payment of benefits to Plan participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Company's Insolvency, or has
received notice from Company or a person claiming to be a creditor alleging that
Company is Insolvent, Trustee shall have no duty to inquire whether Company is
Insolvent. Trustee may in all events rely on such evidence concerning Company's
solvency as may be furnished to Trustee and that provides Trustee with a
reasonable basis for making a determination concerning Company's solvency.
(3) If at any time Trustee has determined that Company is Insolvent,
Trustee shall discontinue payments to Plan participants or their beneficiaries
and shall hold the assets of the Trust for the benefit of Company's general
creditors. Nothing in this Trust Agreement shall in any way diminish any right
of Plan participants or their beneficiaries to pursue their rights as general
creditors of Company with respect to benefits due under the Plan(s) or
otherwise.
(4) Trustee shall resume the payment of benefits to Plan participants or
their beneficiaries in accordance with Section 2 of this Trust Agreement only
after Trustee received a determination that Company is not Insolvent (or is no
longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan(s) for the
period of such discontinuance, less the aggregate amount of any payments made
to Plan participants or their beneficiaries by Company in lieu of the payment
provided for hereunder during any such period of discontinuance.
Section 4. Payments to Company.
The Company shall have no right or power to direct the Trustee to return
to the Company or to divert to any other person any of the Trust assets before
all payment of benefits have been made to the Participants or their
Beneficiaries pursuant to the terms of the Payment Schedules.
Notwithstanding the foregoing, the Administrator
4
<PAGE>
may direct the Trustee to return to the Company Shares and other property
attributable thereto (including, without limitation, dividends and distributions
thereon) that have been forfeited by Participants under the terms of the Plan or
other plan, program, agreement or arrangement. In addition, the Administrator
may direct the Trustee to deliver Shares to the Company to pay the purchase
price of stock options of the Company granted to a Participant; provided,
however, that the number of Shares otherwise deliverable to the Company on
behalf of the Participant upon the exercise of such options shall be
automatically returned to the Trust and shall remain subject to the terms and
conditions of the Shares so delivered. The Administrator shall certify to
the Trustee in writing whether all payments of benefits under the Trust have
been made. The Trustee may conclusively rely upon such certification.
Section 5. Investment Authority.
The Trustee shall have the authority, as directed by the Administrator,
to invest in government securities, common stocks, preferred stocks, bonds,
notes, commercial paper, fixed time deposits, money market instruments,
mutual funds including any investment offered by the Trustee's affiliates.
The Administrator can delegate to each Participant the right to express his
or her preference as to the appropriate allocation range within the
authorized investments selected by the Administrator. The Trustee retains
the authority to select the actual investment allocation for each participant
provided that the Trustee shall not dispose of any Shares deposited with the
Trust prior to the date on which such Shares are no longer subject to a risk
of forfeiture pursuant to the Plan or any other compensatory arrangement
theretofore established with respect to which the Trust is then holding
Shares; provided further that in the event of a Change in Status (as defined
in the Plan), the Trustee may elect to surrender to the Company, within the
60-day period immediately following such Change in Status, any Shares then
held by the Trust in exchange for a cash payment equal to the Market Price of
such Shares on the date of such surrender (as defined in the Company's 1994
Stock Option and Performance Incentive Plan). Notwithstanding the foregoing,
assets of the Trust may be invested in Shares only if such Shares have
been deposited in the Trust pursuant to Sections 1(a) and (f), or to the extent
a Participant who is not subject to the requirements of Section 16 of the
Exchange Act elects to allocate all or a portion of his or her Deferral Account
(as defined in the Plan) into Shares.
Trustee may invest in securities (including stock or rights to acquire
stock) or obligations issued by the Company. All rights associated with assets
of the Trust shall be exercised by Trustee or the person designated by Trustee,
except that voting rights with respect to Trust assets will be exercised by
Administrator.
5
<PAGE>
Section 6. Disposition of Income.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes (other than taxes on income earned by the Trust which will be
borne by the Company), shall be accumulated and reinvested.
Section 7. Accounting by Trustee.
Trustee shall keep accurate and detailed records of all investment,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between
Company and Trustee. Within 30 days following the close of each fiscal year
(January 31) and within 90 days after the removal or resignation of Trustee,
Trustee shall deliver to the Company a written account of its administration of
the Trust during such year or during the period from the close of the last
preceding year to the date of such removal or resignation, setting for the all
investments, receipts, disbursements and other transactions effected by it,
including a description of all securities and investment purchased and sold with
the cost or net proceeds of such purchases or sales (accrued interest paid or
receivable being shown separately), and showing all cash, securities and other
property held in the Trust at the end of such year or as of the date of such
removal or resignation, as the case may be.
Section 8. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in like capacity
and familiar with such material would use in the conduct of an enterprise of
alike character and with like aims, provided, however, that Trustee shall incur
no liability to any person for any action taken pursuant to a direction, request
or approval given by Company which is contemplated by, and in reasonable
conformity with, the terms of the Plan(s) or this Trust and this given in
writing by Company. In the event of a dispute between Company and a party,
Trustee may apply to a court of competent jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in
connection with this Trust, Company agrees to indemnify Trustee against
Trustee's reasonable costs, expenses and liabilities (including, without
limitation, attorneys' fees and expenses) relating thereto and to be primarily
liable for such payments.
(c) Trustee may consult with legal counsel (who may also be counsel for
Company or Trustee generally) with respect to any of its duties or obligations
hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder.
6
<PAGE>
(e) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the
Trust, Trustee shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from conversion of the
policy to a different form) other than to a successor Trustee, or to loan to
any person the proceeds of any borrowing against such policy.
(f) Notwithstanding any powers granted to Trustee pursuant to this Trust
Agreement or to applicable law, Trustee shall not have any power that could give
this Trust the objective of carrying on a business and dividing the gains from,
within the meaning of section 301.7701-2 of the Procedure and Administrative
Regulations promulgated pursuant to the internal Revenue Code.
(g) The Trustee shall deliver or cause to be executed and delivered, to
the Administrator, all notices, prospectuses, finance statements proxies and
proxy soliciting materials relating to investments held hereunder. The
Trustee shall not vote any proxy or tender offer election, participate in any
voting trust, exercise any options or subscription right or join in, dissent
from or oppose any merger, reorganization, consolidation, liquidation or sale
with respect to any asset held hereunder except in accordance with the timely
written instructions of the Administrator. If no such written instructions
are timely received, such proxies, elections and voting trust shall not be
voted: such options or subscription rights shall not be exercised: and such
mergers, reorganizations, consolidation, liquidations or sales shall not be
joined, dissented from or opposed.
(h) The Trustee may, in the exercise of its discretion, invest and
reinvest the assets of any trust created under this Agreement in assets issued
or distributed by American Express Financial Corporation or any of its
successors, subsidiaries or affiliates, even though American Express Financial
Corporation and its successors, subsidiaries or affiliates as are affiliated
with the Trustee. Assets that the Trustee may acquire pursuant to the authority
granted by this paragraph include, but are not limited to load and no-load
mutual funds and Shares.
The Trustee shall have full discretionary authority to make sales,
purchases and exchanges of assets of any trust created under this Agreement to,
from, or through any securities broker/dealer owned by or affiliated with
American Express Financial Corporation, including but not limited to American
Express Securities Services, or any of its successors, subsidiaries or
affiliates, or any unaffiliated persons, partnerships or corporations it may
select, and settle transactions in the usual course of business.
Section 9. Compensation and Expenses of Trustee.
Company shall pay all reasonable administrative and Trustee's fees and
expenses as indicated in Exhibit C of the Administrative Services Agreement,
dated October 1, 1995.
7
<PAGE>
Section 10. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to Company, which
shall be effective 60 days after receipt of such notice unless Company and
Trustee agree otherwise.
(b) Trustee may be removed by Company on 60 days notice or upon shorter
notice accepted by Trustee.
(c) Upon resignation or removal of Trustee and appointment of a
successor Trustee, subject to Trustee's rights to deduct fees and expenses
pursuant to Section 9, all assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed within 90 days after
receipt of notice of resignation, removal or transfer, unless Company extends
the time limit.
(d) If Trustee resigns or is removed, a successor shall be appointed, in
accordance with Section 11 hereof, by the effective date of resignation or
removal under paragraph(s) (a) (or (b)) of this section. If no such appointment
has been made, Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All reasonable expenses of
Trustee in connection with the proceeding shall be allowed as administrative
expenses of the Trust.
Section 11. Appointment of Successor.
(a) If Trustee resigns (or is removed) in accordance with Section 10(a)
(or (b)) hereof, Company may appoint any third party, such as a bank trust
department or other party that may be granted corporate trustee powers under
state law, as a successor to replace Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the new Trustee, who
shall have all of the rights and powers of the former trustee, including
ownership rights in the Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by Company or the successor Trustee
to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from
any other past event, or any condition existing at the time it becomes
successor Trustee.
Section 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument executed
by Trustee and Company. Notwithstanding the foregoing, no such amendment shall
8
<PAGE>
conflict with the terms of the Plan(s) or shall make the Trust revocable after
it has become irrevocable in accordance with Section 1(b) hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plan(s) "unless sooner revoked in accordance with Section
1(b) hereof." Upon termination of the Trust any assets remaining in the Trust
shall be returned to Company.
(c) Upon written approval of participants or beneficiaries entitled to
payment of benefits pursuant to the terms of the Plan(s), Company may terminate
this Trust prior to the time all benefit payments under the Plan(s) have been
made. All assets in the Trust at termination shall be returned to Company.
Section 13. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of Minnesota.
Section 14. Effective Date.
Upon the execution by the Trustee, the effective date of this Trust
Agreement shall be as of October 1, 1995.
9<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be executed as of the day and year first above written.
TOYS "R" US, INC.
By: /s/ Louis Lipschitz
-------------------
Louis Lipschitz
Title: Senior Vice President - Finance
and Chief Financial Officer
Date: October 30, 1995
American Express Trust Company, a Minnesota trust company
By: /s/ Kevin Weise
---------------
Kevin Weise
Title: Vice President, Senior Trust Officer
Date: November 3, 1995
EXHIBIT 21
SUBSIDIARIES OF THE REGISTRANT
AS OF JANUARY 1, 1996
Name Jurisdiction of Incorporation
- ---- -----------------------------
TRU, Inc. Delaware
Geoffrey, Inc. Delaware
Toys "R" Us-NY Holdings, Inc. Delaware
Toys "R" Us-Ohio, Inc. Delaware
Toys "R" Us-Delaware, Inc. Delaware
KRU, Inc. Delaware
TRU Mass. Properties, Inc. Delaware
TRU Ohio Properties, Inc. Delaware
TRU Penn. Properties, Inc. Delaware
TRU Properties, Inc. Delaware
Toys "R" Us-Mass., Inc. Massachusetts
ABG Corp. Nevada
Toys "R" Us-NYTEX, Inc. New York
Toys "R" Us-N.Y. Limited Partnership New York
Toys "R" Us-Penn., Inc. Pennsylvania
TRU of Puerto Rico, Inc. Puerto Rico
Toys "R" Us-Texas, Inc. Texas
TRU (Vermont), Inc. Vermont
Toys "R" Us (Australia) Pty, Ltd. Australia
Toys "R" Us Handelsgesellschaft m.b.H. Austria
TRU (Barbados), Ltd. Barbados
Toys "R" Us-Belgium, N.V. Belgium
Toys "R" Us (Canada) Ltd. Ontario, Canada
TRU (NRO) Investments Ltd. Alberta, Canada
TRU (NRO) II Investments Ltd. Alberta, Canada
TRU (NRO) III Investments Ltd. Alberta, Canada
Toys "R" Us A/S Denmark
Toys "R" Us S.A.R.L. France
Toys "R" Us GmbH Germany
Toys "R" Us Operations GmbH Germany
Toys "R" Us Logistik GmbH Germany
Toys "R" Us Service GmbH Germany
TRU (HK) Limited Hong Kong
Toys "R" Us Asis Limited Hong Kong
Toys "R" Us S.r.l. Italy
Toys "R" Us-Japan Ltd.* Japan
Toys "R" Us (Malaysia) SDN. BHN.** Malaysia
Toys "R" Us (Mexico), S.A. de C.V. Mexico
TRU (Netherlands) B.V. Netherlands
Toys "R" Us (Netherlands) B.V. Netherlands
Toys R Us Portugal, Limitada Portugal
Toys "R" Us-Singapore (Pte) Limited Singapore
Toys R Us, Iberia, S.A. Spain
Toys "R" Us, Aktiebolag Sweden
TRU Toys R Us AG Switzerland
TRU AG Switzerland
Toys "R" Us Limited United Kingdom
Toys "R" Us Holdings PLC United Kingdom
Toys "R" Us Properties Limited United Kingdom
Other subsidiaries are omitted because considered in the aggregate such
subsidiaries would not constitute a significant subsidiary.
* 80% owned
** 60% owned
