As filed with the Securities and Exchange Commission
on March 17, 1997
Registration No. 333-
.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________________
TOYS "R" US, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3260693
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
461 From Road, Paramus, New Jersey 07652
(Address of Principal Executive Officers) (Zip Code)
TOYS "R" US, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
Louis Lipschitz
Executive Vice President and Chief Financial Officer
TOYS "R" US, INC.
461 From Road
Paramus, New Jersey 07652
(201) 262-7800
(Name, Address and Telephone Number of Agent for Service)
Copy to:
Andre Weiss, Esq.
Schulte Roth & Zabel LLP
900 Third Avenue
New York, New York 10022
_____________________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered Per Share(1) Offering Price(1) Fee
______________________________________________________________________________
Common Stock, 2,000,000 shares(2) $28.125 $56,250,000 $17,045.46
par value $.10
per share
- -----------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee, in
accordance with Rules 457(c) and (h) of the Securities Act of 1933, as
amended,
on the basis of the average of the high and low sales prices per share of the
registrant's Common Stock ("Common Stock") for March 12, 1997, as listed on
the New York Stock Exchange.
(2) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended, this registration statement also covers an indeterminate number of
shares of Common Stock as, in accordance with the registrant's Employee Stock
Purchase Plan (the "Plan"), may be required to cover possible adjustments to
the Common Stock resulting from stock splits, stock dividends or similar
transactions.
PRIOR REGISTRATION STATEMENT
This Registration Statement is filed with the Securities and Exchange
Commission (the "Commission") for the purpose of registering additional
shares of Common Stock in connection with the Plan. A registration
statement on Form S-8, File No. 33-16821, was filed with the Commission
on August 28,1987. The prior registration statement remains in effect for
shares of Common Stock acquired in reliance upon such registration
statement. However, the contents of such prior registration statement are
updated by the contents of this Registration Statement and, in addition,
all shares of Common Stock acquired under the Plan from this date forward
will be acquired in reliance upon this Registration Statement.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in Part I of Form
S-8 will be sent or given to employees participating in the Plan as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended. Those documents
and the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents, which have been filed by Toys "R" Us,
Inc., a Delaware corporation (the "Company"), with the Commission, are
incorporated in this Registration Statement by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended February 3, 1996, filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), which
incorporates by reference certified financial statements for the Company's
fiscal year ended February 3, 1996.
2. The Company's Quarterly Reports on Form 10-Q for the
quarters
ended May 4, 1996, August 3, 1996 and November 2, 1996, filed pursuant to
Section 13(a) or 15(d) of the Exchange Act.
3. The Company's Current Reports on Form 8-K for July 15, 1996,
October 2, 1996, January 6, 1997 and February 3, 1997.
4. The Company's Notice of Annual Meeting of Stockholders and
Proxy Statement for its Annual Meeting of Stockholders held on June 5, 1996,
filed pursuant to Section 14 of the Exchange Act.
5. The description of the Common Stock contained in Item 1 of
the Company's Registration Statement on Form 8-A filed with the Commission on
June 13, 1979 pursuant to Section 12 of the Exchange Act, including any
amendments or reports filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in and to be
a part of this Registration Statement from the date of filing of such reports
and documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Legal Opinion.
Not applicable. See "Note" to Item 8.
Experts.
The consolidated financial statements of Toys "R" Us, Inc. and
subsidiaries incorporated by reference in the Company's Annual Report (Form
10-K) for the year ended February 3, 1996 have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon incorporated
by reference therein and incorporated herein by reference. Such financial
statements are, and audited financial statements to be incorporated by
reference in subsequently filed documents will be, incorporated herein in
reliance upon the reports of Ernst & Young LLP pertaining to such financial
statements (to the extent covered by consents filed with the Securities and
Exchange Commission) given upon the authority of such firm as experts in
accounting and auditing.
Item 6. Indemnification of Directors and Officers.
Limitation of Directors' Liability.
The Delaware General Corporation Law ("DGCL") provides that a
corporation's certificate of incorporation may include a provision limiting
the personal liability of a director to the corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director. However,
no such provision can eliminate or limit the liability of a director (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of the law, (iii) under Section
174 of the DGCL, which relates to liability for unlawful payments of
dividends or unlawful stock repurchases or redemptions, (iv) for any
transaction from which the director derived an improper personal benefit, or
(v) for any act or omission prior to the adoption of such a provision in the
certificate of incorporation. The Company's Restated Certificate of
Incorporation contains a provision eliminating the personal liability for
monetary damages of its directors to the full extent permitted under the DGCL.
Indemnification and Insurance.
The DGCL contains provisions setting forth conditions under which
a corporation may indemnify its directors and officers. The Company's
Restated Certificate of Incorporation provides that a director or officer who
is a party to any action, suit or proceeding shall be entitled to be
indemnified by the Company to the extent permitted by the DGCL against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement incurred by such director or officer in connection with such
action, suit or proceeding. The Company has entered into indemnification
agreements with each of its directors and intends to enter into
indemnification agreements with each of its future directors. Pursuant to
such indemnification agreements, the Company has agreed to indemnify its
directors against certain liabilities, including any liabilities arising out
of this Registration Statement. The Company maintains a standard form of
officers' and directors' liability insurance policy which provides coverage
to the officers and directors of the Company for certain liabilities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as a part of
this Registration Statement:
Exhibit No. Document
4.1 Restated Certificate of Incorporation of the
Company, filed as Exhibit 3.1 to the Company's
Form 8-B of January 3, 1996, and incorporated
herein by reference
4.2 Amended and Restated By-Laws of the Company,
filed as Exhibit 3.2 to the Company's Form
8-B of January 3, 1996, and incorporated
herein by reference
4.3 Employee Stock Purchase Plan of the Company,
dated as of September 1987, as amended
23.1 Consent of Ernst & Young LLP
24 Powers of Attorney (included in the
signature pages of this Registration
Statement)
Note: In accordance with the instructions to Item 8 of Form S-8 and Item
601(b)(5) of Regulation S-K, an opinion of counsel is not being
furnished in connection with this Registration Statement because (a) in
accordance with prior practice, all purchases of shares of Common Stock
under the Plan will be carried out on the open market and no new shares
will be issued in connection with the Plan, and (b) the Plan is not
subject to the requirements of ERISA.
Item 9. Undertakings.
A. To Update Annually.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or 15(d)
of the Exchange Act that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B Incorporation of Subsequent Exchange Act Documents by Reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Indemnification of Officers and Directors.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Paramus, State of New Jersey, on
this 17th day of March, 1997.
TOYS "R" US, INC.
By: /S/ Louis Lipschitz
----------------------
Louis Lipschitz
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
The Registrant and each person whose signature appears below hereby
appoint Michael Goldstein and Louis Lipschitz, and each of them, as their
attorneys-in-fact, with full power of substitution, to execute in their names
and on behalf of the Registrant and each such person, individually and in each
capacity stated below, one or more amendments (including post-effective
amendments) to this Registration Statement as the attorney-in-fact acting on
the premise shall from time to time deem appropriate and to file any such
amendment to this Registration Statement with the Securities and Exchange
Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated, on this 17th day of March, 1997.
Name and Signature Title
- --------------------- -----
/s/Charles Lazarus Chairman of the Board
- ---------------------
/s/Michael Goldstein Vice Chairman and Chief
- --------------------- Executive Officer (Principal Executive
Officer)
/s/Robert C. Nakasone Director, President and
- ---------------------- Chief Operating Officer
/s/Louis Lipschitz Executive Vice President and
- ------------------- Chief Financial Officer
(Principal Financial Officer)
/s/Joseph J. Lombardi Vice President - Controller
- ---------------------- (Principal Accounting Officer)
/s/Robert A. Bernhard Director
- ---------------------
/s/RoAnn Costin Director
- ----------------
/s/Milton S. Gould Director
- -------------------
/s/Shirley Strum Kenny Director
- ----------------------
/s/Norman S. Matthews Director
- ----------------------
/s/Howard W. Moore Director
- ----------------------
/s/Harold M. Wit Director
- ----------------------
EXHIBIT 4.3
EMPLOYEE STOCK PURCHASE PLAN
The following is the complete text of the Plan, as amended to
date:
1. Purpose
-------
The purpose of the Employee Stock Purchase Plan (the "Plan") is to
provide employees of TOYS "R" US, INC. ("TRU"), and each subsidiary of TRU
which adopts this Plan with the consent of TRU (TRU and each such subsidiary
hereinafter referred to as an "Employer"), with a convenient way to become
shareholders of TRU. The Board of Directors of TRU (the "Board") believes
that employee participation in the ownership of the business will help to
achieve the unity of purpose essential to the continued growth of TRU for
the mutual benefit of its employees and shareholders.
2. Effective Date of the Plan
--------------------------
The Plan shall become effective on October 1, 1987.
3. Administration
--------------
The Plan shall be administered by a Committee appointed by the
Board, consisting of at least three individuals who may, but need not, be
members of the Board. The Board may at any time and from time to time
remove any member of the Committee, with or without cause, and appoint
additional members of the Committee and fill vacancies, however caused, in
the Committee. A majority of the members of the Committee shall constitute
a quorum. All determinations of the Committee shall be made by a majority of
its members. Any decision or determination of the Committee reduced to
writing and signed by all of the members of the Committee shall be fully as
effective as if it had been made at a meeting duly called and held.
4. Eligibility
-----------
All employees who have been continuously in the employment of an
Employer for 90 days or more are eligible to participate in the Plan, except
for employees covered by a collective bargaining agreement, unless the
agreement specifically provides that such employees are eligible to
participate in the Plan; provided, however, that executive officers subject
to Section 16 of the Securities Exchange Act of 1934, as amended, shall not
be eligible to participate in the Plan.
5. Participation
-------------
An eligible employee who wishes to participate in the Plan (a
"Participant") shall execute a form to be furnished by the Committee
indicating that such employee authorizes and instructs the employee's
Employer to make regular payroll deductions from the employee's compensation
to be applied to the purchase of TRU common stock ("Common Stock"). Such
payroll deductions shall commence as soon as administratively feasible
following receipt by the Committee of such authorization.
6. Payroll Deductions
------------------
The Employer shall maintain payroll deduction accounts for all
Participants. Participants may authorize a payroll deduction of not less than
$5.00 nor more than $100.00 per week, A Participant may at any time, but not
more frequently than twice a year, increase or decrease and, at any time, may
cease the Participant's payroll deduction by filing a new payroll deduction
authorization form.
7. Contributions
-------------
Each Employer shall contribute an amount equal to 10% of the
Participant's contribution towards the purchase of the shares of Common Stock.
Contributions may be made in cash or in treasury or authorized but unissued
shares of Common Stock, or both. If shares are contributed, such shares
shall be valued at the average purchase price paid by the Broker (as
hereinafter defined) on the date shares are purchased (the "Purchase Date")
by the Broker for the Plan from the funds contributed by the Participant's
payroll deductions and by each Employer's cash contributions, if any. Shares
contributed by TRU, if any, will be deemed contributed on the Purchase Date
and will be delivered to the Broker for credit to the Accounts (as
hereinafter defined) of the Participants promptly after the Broker advises
TRU of the average purchase price and number of shares to be delivered.
8. Purchase of Common Stock
------------------------
From time to time, but no less often than once a month, TRU, on
behalf of each Employer, shall forward to the Broker the funds (i) from each
Participant's payroll deductions, and (ii) the contributions in cash and, if
any, Common Stock made by each Employer with respect to such payroll
deductions. As soon as the Broker considers it advisable, it shall apply
such funds to the purchase of Common Stock in the market or in private
transactions at prevailing market prices for the Accounts of the Participants.
The Broker shall also apply the contributions of Common Stock, if any, to the
Accounts of the Participants. The Broker may also purchase all or any part
of the Common Stock directly from TRU at a price equal to the average of the
high and low composite sale prices of the Common Stock as reported by the
Composite Tape Association to the time of the close of trading on the New
York Stock Exchange on the date of purchase.
9. Designation of Broker and Participant's Account With Broker
-----------------------------------------------------------
TRU has designated Smith Barney, Inc. (the "Broker") to open an
account for each Participant (an "Account"). TRU reserves the right to change
such designation at any time without prior notice to Participants, and the
Broker has reserved the right to terminate its services as Broker under the
Plan at any time.
Individual Account with Broker. The Broker shall open and maintain
a separate Account for each Participant. A Participant may also use the
Account for other purchases of TRU shares. A termination by a Participant
of participation in the Plan will not, as such, also terminate the individuals
Account with the Broker.
Allocation of Shares to Participant. Shares purchased by the
Broker and shares contributed by TRU, if any, shall be allocated to the
individual Account established for each Participant, in proportion to the
respective amounts received for such Participant's account. Allocations
shall be made in whole shares and in fractional shares.
Ownership of Shares. At the time of purchase and at the time of
contribution of shares, if any, by TRU, each Participant shall immediately
acquire full ownership of all whole shares and fractional shares purchased by
the Broker, or contributed by TRU, for the Participant's Account. All shares
shall be registered in the name of the Broker, or its nominee, and remain so
registered until delivery or sale is requested by a Participant. A
Participant may not require delivery of a certificate for a fractional share,
but may instruct the Broker to sell the fractional share. A Participant may
instruct the Broker at any time to deliver to the Participant a certificate
for any or all of the Participant's shares in the Account without affecting
participation in the Plan, and shall pay any Broker's charge for delivery of
certificates.
Sale of Shares by Participant. Subject to restrictions imposed by
TRU or by applicable law, a Participant may instruct the Broker at any time to
sell any or all of a Participant's shares in the Participant's Account,
without affecting participation in the Plan.
Distributions on TRU Common Stock. Cash dividends, if any, on TRU
Common Stock shall be credited to the Account of the Participant. Any
dividends paid in shares of Common Stock or any splits of shares of Common
Stock which are received by the Broker on shares registered in the name of
the Broker or its nominee shall be allocated to each Participant (to the
nearest ten-thousandth of a share) in accordance with such Participant's
interest in the shares in which the dividends or splits are paid, without
charge. Any other securities or subscription rights distributed on shares of
Common Stock may be retained or sold, and, in the event of such sale, the
Broker's commission or markdown applicable to similar Accounts will be
payable by the Participant. The proceeds will be applied in the same manner
as a cash dividend.
Confirmation of Transactions and Statements of Account from
Broker. Each Participant shall receive from the Broker monthly statements of
Account and shall also receive confirmation of current transactions as
required by regulatory authorities.
Communications from TRU and Voting of Shares. The Broker shall
deliver to each Participant as promptly as practicable, by mail or otherwise,
all notices of meetings, proxy statements and other material distributed by
TRU to its shareholders. The whole shares in each Participant's Account
shall be voted in accordance with the Participant's signed proxy instructions
duly delivered to the Broker, or otherwise, in accordance with rules
applicable to stock listed on the New York Stock Exchange.
10. Voluntary Termination of Participation in Plan
----------------------------------------------
A Participant may terminate participation in the Plan at any time
by delivering to such Participant's Human Resources office written notice
terminating such Participant's payroll deduction authorization, which shall
become effective as soon as practicable after receipt.
A Participant who terminates participation in the Plan may not
re-enroll in the Plan for six months after such termination becomes effective.
11. Automatic Termination of Participation in Plan
----------------------------------------------
Participation in the Plan and payroll deduction authorizations
terminate automatically without notice upon death or other termination of
employment with the Employer.
12. Amendment of the Plan
---------------------
The Management Compensation and Stock Option Committee (the
"Committee") may at any time, or from time to time, amend this Plan in any
respect.
13. Termination of the Plan
-----------------------
The Plan may be terminated at any time in the discretion of the
Committee.
14. Governmental Regulations
------------------------
TRU's obligation to sell and deliver TRU Common Stock under this
Plan is subject to the approval of any governmental authority required in
connection with the authorization, issuance, or sale of such Stock.
15. Binding Effect
--------------
This Plan shall be binding upon the parties hereto, their heirs,
successors and assigns.
16. No Contract of Employment
-------------------------
Neither the adoption nor continuation of the Plan, nor the
enrollment or continuation of a Participant therein, shall be deemed to:
(a) give rise to any contract between any Employer
and any employee; or
(b) constitute a consideration for, or an inducement or
condition of, the employment of any employee; or
(c) create any right to be retained in the employ of any
Employer; or
(d) interfere with the right of any Employer to discharge
any employee at any time, with or without cause.
17. Not Compensatory
----------------
This Plan is intended solely to provide employees a convenient
mechanism with which to purchase TRU Common Stock through payroll deductions,
or otherwise, and is not to be construed as a form of current or deferred
compensation, for purposes of this Plan or any other Plan, practice, custom or
arrangement for employees, whether or not an "employee benefit plan" defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended.
EXHIBIT 23.1
[LETTERHEAD OF ERNST & YOUNG LLP]
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) and related Prospectus pertaining to the
Employee Stock Purchase Plan of Toys "R" Us, Inc. and to the incorporation
by reference therein of our report dated March 13, 1996, with respect to the
consolidated financial statements of Toys "R" Us, Inc. and subsidiaries
incorporated by reference in its Annual Report (Form 10-K) for the year ended
February 3, 1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
New York, New York
March 17, 1997
