<PAGE> 1
As filed with the Securities and Exchange Commission on December 28, 1999
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TOO, INC.
(Exact name of Registrant as specified in its charter)
Delaware 31-1333930
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3885 Morse Road
Columbus, Ohio 43219
(Address of Registrant's principal executive offices)
TOO, INC.
1999 ASSOCIATE STOCK PURCHASE PLAN
(Full Title of the Plan)
Kent A. Kleeberger
Vice President and Chief Financial Officer
Too, Inc.
3885 Morse Road
Columbus, Ohio 43219
(614) 479-3500
(Name, address and telephone number of agent for service)
Copies of Correspondence to:
Curtis A. Loveland, Esq.
Porter, Wright, Morris & Arthur LLP
41 South High Street
Columbus, Ohio 43215
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share* Price* Registration Fee*
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value............... 100,000 $16.00 $1,600,000.00 $422.40
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
*Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(h), based upon the average of the high and low prices of Too, Inc.
Common Stock as reported on the New York Stock Exchange on December 21, 1999.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan described
herein.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information concerning our 1999 Associate
Stock Purchase Plan, specified in Part I, will be sent or given to our executive
and key management associates as specified by Rule 428(b)(1). These documents
are not filed as part of this registration statement in accordance with the Note
to Part I of the Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Securities and Exchange Commission allows us to incorporate by
reference the information we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
registration statement, and information that we later file with the Commission
will automatically update and supersede this information. Accordingly, we
incorporate by reference the following documents we filed with the Commission
pursuant to the Securities Exchange Act of 1934 (Commission File Number
1-14987):
- Our registration statement on Form 10 filed with the Commission
pursuant to Section 12 of the Securities Exchange Act of 1934
(filed May 4, 1999);
- Our Quarterly Reports on Form 10-Q for the quarter ended July 31,
1999 (filed October 4, 1999) and for the quarter ended October 30,
1999 (filed December 14, 1999);
- Our Current Report on Form 8-K dated August 23, 1999 (filed
October 1, 1999);
- The description of our common stock, contained in the registration
statement on Form 10, and all amendments thereto and reports filed
for the purpose of updating such description; and
- All documents filed by us pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date of
this registration statement and before the offering of our common
stock under our 1999 Stock Option and Performance Incentive Plan
thereby is completed (other than portions of such documents
described in paragraphs (i), (k) and (l) of Item 402 of Regulation
S-K promulgated by the Commission).
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware General Corporation Law, our certificate of incorporation and
our bylaws contain provisions relating to the limitation of liability and
indemnification of our directors and officers. We describe these provisions
below.
2
<PAGE> 3
Our certificate of incorporation provides that our directors are not
personally liable to us or our shareholders for monetary damages for breach of
their fiduciary duties as directors to the fullest extent permitted by Delaware
law. Existing Delaware law permits the elimination or limitation of directors'
personal liability to us or our shareholders for monetary damages for breach of
their fiduciary duties as directors, except liability for:
- any breach of a director's duty of loyalty to us or our shareholders;
- acts or omissions not in good faith or involving intentional misconduct
or a knowing violation of law;
- any transaction from which a director derived improper personal
benefit;
- the unlawful payment of dividends; and
- unlawful stock repurchases or redemptions.
Because of these exculpation provisions, shareholders may be unable to
recover monetary damages against directors for actions taken by them that
constitute negligence or that otherwise violate their fiduciary duties as
directors, although it may be possible to obtain injunctive or other equitable
relief with respect to such actions. If equitable remedies are not available to
shareholders, shareholders may not have an effective remedy against a director
in connection with the director's conduct.
Our bylaws also provide that we will indemnify and hold harmless any
person who was or is a party or is threatened to be made a party to, or is
involved in, any threatened, pending or completed civil, criminal,
administrative or investigative action, suit or proceeding by reason of the fact
that the person:
- is or was one of our directors or officers; or
- is or was serving at our request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise or as a member of any committee or similar body to the
fullest extent permitted by Delaware law. We will also pay the expenses
incurred in connection with any such proceeding in advance of its final
disposition to the fullest extent authorized by Delaware law. This
right to indemnification will be a contract right. We may, by action of
our board, provide indemnification to our employees and agents to the
extent and to the effect that our board determines to be appropriate
and authorized by Delaware law.
We intend to purchase and maintain insurance on behalf of any person
who:
- is or was one of our directors, officers, employees or agents; or
- is or was serving at our request as a director, officer, employee
or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against
and incurred by the person in any such capacity, or arising out
of the person's status as such, whether or not we would have the
power or obligation to indemnify the person against such
liability under our bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
3
<PAGE> 4
ITEM 8. EXHIBITS
Exhibit
Number Exhibit Description
------ -------------------
4(a) * Too, Inc. 1999 Associate Stock Purchase Plan.
4(b) Amended and Restated Certificate of Incorporation
of Too, Inc. (Previously filed as Exhibit 3.1 to
Current Report on Form 8-K (filed October 1, 1999),
and incorporated herein by reference).
4(c) Amended and Restated Bylaws of Too, Inc.
(Previously filed as Exhibit 3.2 to Current Report
on Form 8-K (filed October 1, 1999), and
incorporated herein by reference).
5 * Opinion of Porter, Wright, Morris & Arthur LLP
regarding legality.
15 * Letter of PricewaterhouseCoopers LLP regarding
Unaudited Interim Financial Statements.
23(a) Consent of Porter, Wright, Morris & Arthur LLP
(included in Exhibit 5 filed herewith).
23(b) * Consent of PricewaterhouseCoopers LLP.
24 * Power of Attorney.
- -----------------------------------
* Filed with this Registration Statement.
ITEM 9. UNDERTAKINGS
We hereby undertake:
(1) To file, during any period in which offers or sale are being
made, as post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of the
securities offered would not exceed what was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of a prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective
registration statement;
4
<PAGE> 5
(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 (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8
and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by us pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
We hereby undertake that, for purposes of determining any liability
under the Securities Act of 1933, each filing of our annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by us of expenses incurred or paid by a director, officer or
controlling person 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, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by us is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, we certify
that we have reasonable grounds to believe that we meet all of the requirements
for filing on Form S-8 and have duly caused this Registration Statement on Form
S-8 to be signed on our behalf by the undersigned, thereunto duly authorized, in
the City of Columbus, State of Ohio, on December 27, 1999.
TOO, INC.
By: /s/ Kent A. Kleeberger
--------------------------------------
Kent A. Kleeberger, Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
*Michael W. Rayden Chairperson, President, Chief Executive ) December 27, 1999
- ------------------------------------ Officer, and Director
Michael W. Rayden (Principal Executive Officer) )
)
)
)
/s/ Kent A. Kleeberger Vice President, Chief Financial ) December 27, 1999
- ------------------------------------ Officer, Secretary, and Treasurer
Kent A. Kleeberger (Principal Accounting and )
Financial Officer) )
)
)
* Nancy Jean Kramer Director ) December 27, 1999
- -------------------------------------
Nancy Jean Kramer )
)
)
)
* David A. Krinsky Director ) December 27, 1999
- -------------------------------------
David A. Krinsky )
)
)
)
* James U. McNeal Director ) December 27, 1999
- -------------------------------------
James U. McNeal )
)
)
)
* Kenneth James Strottman Director ) December 27, 1999
- ------------------------------------
Kenneth James Strottman )
)
)
)
*By: /s/ Kent A. Kleeberger
----------------------------------------------
Kent A. Kleeberger, attorney-in-fact
for each of the persons indicated
</TABLE>
6
<PAGE> 7
Pursuant to the requirements of the Securities Act of 1933, the
administrator of the Too, Inc. 1999 Associate Stock Purchase Plan has duly
caused this Registration Statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Columbus, State of Ohio,
on December 27, 1999.
TOO, INC.
1999 ASSOCIATE STOCK PURCHASE PLAN
By: /s/ Kathleen C. Maurer
---------------------------------------
Kathleen C. Maurer, Chairperson of the
Benefits Administrative Committee
7
<PAGE> 8
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TOO, INC.
EXHIBITS
<PAGE> 9
EXHIBIT INDEX
Exhibit
Number Exhibit Description
-------- ---------------------------------------------------
4(a) * Too, Inc. 1999 Associate Stock Purchase Plan.
4(b) Amended and Restated Certificate of Incorporation
of Too, Inc. (Previously filed as Exhibit 3.1 to
Current Report on Form 8-K (filed October 1, 1999),
and incorporated herein by reference).
4(c) Amended and Restated Bylaws of Too, Inc.
(Previously filed as Exhibit 3.2 to Current Report
on Form 8-K (filed October 1, 1999), and
incorporated herein by reference).
5 * Opinion of Porter, Wright, Morris & Arthur LLP
regarding legality.
15 * Letter of PricewaterhouseCoopers LLP regarding
Unaudited Interim Financial Statements.
23(a) Consent of Porter, Wright, Morris & Arthur LLP
(included in Exhibit 5 filed herewith).
23(b) * Consent of PricewaterhouseCoopers LLP.
24 * Power of Attorney.
- --------------------------------------
* Filed with this Registration Statement.
<PAGE> 1
Exhibit 4(a)
TOO, INC.
1999 ASSOCIATE STOCK PURCHASE PLAN
(EFFECTIVE SEPTEMBER 1, 1999)
TOO, INC., a Delaware corporation (the "Company"), hereby adopts the
Too, Inc., Associate Stock Purchase Plan (the "Plan") in order to provide
Associates of the Company and its Affiliates and Subsidiaries with the
opportunity to purchase shares of common stock of the Company.
ARTICLE I
DEFINITIONS
-----------
Whenever used herein, the following words and phrases shall have the
meanings stated below, unless a different meaning is clearly indicated by the
context:
1.1. "ACCOUNT" means the account maintained for each Participant by the
Custodian, which will be the entire interest of the Participant under the Plan.
1.2. "AFFILIATE" means any entity which controls, is controlled by, or
is under common control with, the Company.
1.3. "ASSOCIATE" means any person employed by the Employer.
1.4. "BOARD OF DIRECTORS" means the board of directors of the Company.
1.5. "COMPANY" means Too, Inc., a Delaware corporation, and any
successor thereto.
1.6. "COMPANY STOCK" means the common stock, $0.01 par value, of
the Company.
1.7. "COMPENSATION" means amounts received by an Eligible Associate
from an Employer as cash compensation while the Eligible Associate is a
Participant.
1.8. "CONTRIBUTIONS" means the amounts withheld by the Employer from
the Compensation of a Participant pursuant to an Enrollment Form, which amounts
will be paid over to the Custodian for investment in Company Stock.
1.9. "CUSTODIAN" means Merrill, Lynch, Pierce, Fenner & Smith, Inc., or
the party or parties acting as such under the Servicing Agreement.
1.10. "ELIGIBLE ASSOCIATE" means an Associate who (i) has the legal
capacity to enter into binding contractual obligations, and (ii) is not in a
category of Associates designated by the Employer as ineligible to participate
in the Plan.
1.11. "EMPLOYER" means the Company and any Subsidiary or Affiliate
which, with the consent of the Board of Directors, adopts this Plan and agrees
to be bound by the terms of the Servicing Agreement.
1.12. "EMPLOYER STOCK" means Company Stock and, with respect to any
Participant who previously participated in The Limited Plan, any Class A common
stock, $.50 par value, of The Limited, Inc.; Class A common stock, $0.01 par
value of Intimate Brands, Inc.; and/or Class A common stock, $0.01 par value, of
Abercrombie & Fitch Co. which has been credited to the Participant's Account
pursuant to Section 4.3.
<PAGE> 2
1.13. "ENROLLMENT FORM" means an agreement, on such form as may be
prescribed by the Company, between an Eligible Associate and his or her
Employer, whereby the Eligible Associate agrees to become a Participant in the
Plan and directs the Employer to withhold Contributions from his or her
Compensation.
1.14. "PARTICIPANT" means an Eligible Associate who has enrolled as
a Participant in accordance with Section 2.1.
1.15. "PLAN" means the Too, Inc. Associate Stock Purchase Plan as the
same may from time to time hereafter be amended.
1.16. "SECTION 16 PERSON" means (i) any member of the Board of
Directors of the Company; (ii) the president, principal financial officer,
principal accounting officer (or, if there is no such accounting officer, the
controller), any vice-president in charge of a principal business unit, division
or function, of the Company, any other officer of the Company who performs a
policy-making function, or any other person who performs similar policy-making
functions for the Company; or (iii) any person who is the beneficial owner of
more than 10% of the Company's equity securities that are registered pursuant to
Section 12 of the Securities Exchange Act of 1934. The Chief Financial Officer
of the Company shall designate those individuals who are Section 16 Persons and
deliver a list of the Section 16 Persons eligible to participate in the Plan to
the Custodian from time to time or at the request of the Custodian. Such list of
Section 16 Persons will be conclusive on the Custodian and the sole source of
determining who is a Section 16 Person, and the Custodian shall not be required
to further investigate whether a Participant is a Section 16 Person.
1.17. "SERVICING AGREEMENT" means an agreement entered into by and
between the Company and the Custodian governing certain terms and conditions of
the Plan and its operations.
1.18. "SUBSIDIARY" means any entity of which the Company owns, directly
or indirectly, more than 50% of the issued and outstanding shares of common
stock.
1.19. "THE LIMITED PLAN" means The Limited Associate Stock Purchase
Plan, as amended and restated effective January 1, 1999. Associates of the
Company were eligible to participate in The Limited Plan from January 1, 1997
through August 22, 1999.
ARTICLE II
PARTICIPATION
-------------
2.1. ENROLLMENT. Each Eligible Associate may become a Participant in
the Plan by completing and returning to the Employer an Enrollment Form. By
becoming a Participant, each Associate agrees to the provisions of the Plan and
the Servicing Agreement and to all amendments to the Plan and the Servicing
Agreement. With respect to an Associate who was a participant in The Limited
Plan immediately prior to the effective date of this Plan, the Employer and the
Custodian may, upon reasonable notice to the Associate, treat the Associate's
current enrollment form under The Limited Plan as the Associate's initial
Enrollment Form under this Plan.
2.2. MODIFICATIONS. An Enrollment Form may be modified, suspended, or
terminated by the Participant by completing and returning a new Enrollment Form
that will be effective as of such date as the Employer may determine.
2.3. TERMINATION OF ELIGIBLE ASSOCIATE STATUS. If a Participant ceases
to be an Eligible Associate, withholding of Contributions from subsequent
Compensation will cease and the Participant will be entitled to either (i) have
the shares of Employer Stock credited to his or her Account sold and to have the
proceeds from the sale of such shares and the other amounts held in the Account
paid to the Participant, (ii) have the Participant's Account converted in its
entirety into a regular brokerage account with the Custodian or (iii) have the
shares of Employer
<PAGE> 3
Stock issued in the Participant's name and sent to the Participant. From and
after the time such Participant ceases to be an Eligible Associate, the Employer
will have no obligations to the Custodian or the Participant under the Plan or
the Servicing Agreement or with respect to the investments in the Participant's
Account.
ARTICLE III
CONTRIBUTIONS
-------------
3.1. WITHHOLDING. After receipt of an Enrollment Form from a
Participant, the Employer will withhold from each payment of Compensation to
such Participant the amount of the Contribution designated on the Enrollment
Form. Contributions will be withheld only from the net amount of Compensation
payable in cash to the Participant after all other withholdings required by law
or directed to be made by the Participant under any other employee benefit plan
to which the Participant contributes have been made.
3.2. PAYMENT TO CUSTODIAN. The Employer will pay over to the Custodian
monthly the Contributions withheld from each Participant for investment in
Company Stock under the Plan and the Servicing Agreement, on behalf of and as
agent for the Participant.
3.3. SERVICING AGREEMENT. The Company has entered into a Servicing
Agreement with the Custodian, pursuant to which the Employer pays over
Contributions to the Custodian and the Custodian applies Contributions to the
purchase of Company Stock. The Servicing Agreement constitutes a part of this
Plan. In the event of any conflict between the terms of this Plan and the terms
of the Servicing Agreement, the Plan will control as to matters involving the
relationship between the Employer and the Associates and the Servicing Agreement
will control as to matters involving the relationship between the Employer or
Participants and the Custodian.
ARTICLE IV
INVESTMENT OF CONTRIBUTIONS
---------------------------
4.1. ACCOUNTS WITH CUSTODIAN.
4.1.1. The Custodian will establish for each Participant an
Account to which will be credited all Company Stock purchased with Contributions
paid to the Custodian on behalf of the Participant and all shares of Employer
Stock transferred to the Plan pursuant to Section 4.3. The Participant will be
the sole beneficial owner of Employer Stock in the Participant's Account. The
terms governing the operations of the Account will be those set forth in the
Servicing Agreement.
4.1.2. A Participant may, but will not be required to, enter
into an arrangement with the Custodian for the conversion of the Participant's
Account into a regular brokerage or other investment account, but any
investment, fee or other arrangement made in connection with such a conversion
will be made by and between the Custodian and the Participant, and the Employer
will have no obligations to the Custodian or the Participant with respect to
such conversion or investments made as a result of such conversion.
4.2. PURCHASES OF COMPANY STOCK; DIVIDENDS.
4.2.1. After receipt of Contributions from the Employer, the
Custodian will purchase Company Stock for the Account of each Participant for
whom a Contribution is received under the terms of the Servicing Agreement.
4.2.2. Upon receipt of cash dividends on Employer Stock held
in a Participant's Account, the Custodian will reinvest such dividends for the
Account of such Participant in the same Employer Stock on which the
<PAGE> 4
dividends were paid. Cash dividends will be automatically reinvested in such
Employer Stock no later than thirty (30) days following the receipt of the
dividend by the Custodian.
4.2.3. The Custodian may purchase Employer Stock on any
securities market on which the Employer Stock is traded, in the over-the-counter
market or in private transactions from any person or entity, including the
Company, its Affiliates and Subsidiaries, and any employee benefit plan
maintained by the Company and/or its Affiliates and Subsidiaries. The Custodian
will purchase Employer Stock at such times as the Custodian, in its sole
discretion, determines to be in the best interests of Participants. The price at
which the Custodian will be deemed to have acquired shares for a Participant's
Account will be the average price of all shares of the respective Employer Stock
purchased by the Custodian for all Participants under the Plan pursuant to the
same purchase order. Purchases of Employer Stock may be on such terms as to
price, delivery and other matters as the Custodian, in its sole discretion,
determines.
4.2.4. The Custodian may, for a number of reasons, including
but not limited to observance of rules and regulations of the Securities and
Exchange Commission requiring temporary suspension of purchases, be prohibited
from applying funds to purchase Employer Stock as generally provided under the
Plan and the Servicing Agreement, and the Custodian will have no responsibility
at any time with respect to the value of Employer Stock purchased under the Plan
and no liability in connection with any inability to purchase shares or the
timing of any purchases because of conditions beyond the control of the
Custodian. The Custodian may, in its sole discretion, commingle and hold
Participant's shares together with the shares of all other Participant's in its
name or in the name of its nominee.
4.3. TRANSFER OF ACCOUNT BALANCES FROM THE LIMITED PLAN. The Custodian
will credit to the Account of each Participant who previously participated in
The Limited Plan, the number of shares of common stock of The Limited, Inc.,
Intimate Brands, Inc. and Abercrombie & Fitch Co. credited to such participant's
account under The Limited Plan that the Eligible Associate has elected, under
the terms of The Limited Plan, to have transferred to this Plan. Except as
provided by Section 4.2.2 with respect to the reinvestment of dividends, no
shares of Employer Stock except for Company Stock shall be purchased pursuant to
this Plan.
4.4. STATEMENTS. The Custodian will give to each Participant
statements, at least quarterly, showing all transactions in the Participant's
Account and the number of shares of Employer Stock in the Participant's Account
under the terms of the Servicing Agreement.
4.5. COMMISSIONS AND EXPENSES. The Employer will be responsible for,
and pay to the Custodian, all fees, expenses and commissions relating to the
establishment and maintenance of Accounts for Participants, the receipt by the
Custodian of Contributions from the Employer and the purchase of Employer Stock
with Contributions or dividends, but any fees, expenses or commissions relating
to or resulting from the conversion of an Account to a regular brokerage account
under Sections 2.3 or 4.1.2., the withdrawal of any investment from the Account,
the sale of Employer Stock, the purchase of Employer Stock other than with the
proceeds derived from Contributions or dividends, or the purchase or sale of
anything other than Employer Stock, will be the responsibility of the
Participant.
4.6. REPORTS AND MATERIALS. The Custodian will send to each Participant
public reports and materials relating to Employer Stock received by the
Custodian and vote only the whole shares of Employer Stock held in a
Participant's Account and only upon receipt of written directions from the
Participant.
4.7. WITHDRAWALS AND SALES OF EMPLOYER STOCK. At any time that a
Participant is or would be entitled to receive a certificate for his or her
shares of stock held by the Custodian under the Plan, the Participant may
request the Custodian to sell all or any portion of such shares. Following
receipt of said request, the Custodian will make such sale for the Participant
at the opening market price on the next business day. All sales may be made
directly by the Custodian to any person and in any manner permitted for
purchases of shares and shares allocated to the Accounts of all Participants may
be commingled for sale. The Participants will be liable for and his or her
Account will be charged with any brokerage commissions incurred in connection
with such sale.
<PAGE> 5
It is understood that, for a number of reasons, including but not
limited to observance of rules and regulations of the Securities and Exchange
Commission requiring temporary suspension of the purchases, sales may not be
made on the subsequent sale date. The Custodian will have no responsibility at
any time with respect to the value of shares sold under the Plan and no
liability in connection with any inability to sell shares or the timing of any
sales because of conditions beyond its control. A Participant will have no right
to draw checks or drafts against his or her Account or to request the Custodian
to take any action with respect to any shares or cash held therein except as
expressly provided herein.
4.8. TERMINATION. Participation in the Plan may be terminated at any
time by written notice from the Participant received by the Custodian and will
be terminated by written notice of the death or adjudicated incompetency of a
Participant similarly received. A Participant's participation in the Plan may
also be terminated upon receipt by the Custodian of a notice from the Employer
that the Participant is no longer an Eligible Associate of the Employer or that
the Participant has given the Employer notice of his or her desire to terminate
participation in the Plan. Any notice of termination received by the Custodian
after a purchase order for shares has been placed will be effective after such
investment has been completed. The Custodian may terminate a Participant's
Account by sending written notice of termination to the Participant and may
terminate its services by sending such notice to all Participants.
Upon termination by reason of notice of death or adjudicated
incompetency of a Participant, the shares in the Participant's Account will be
retained and the cash balance plus additional dividends will be reinvested by
the Custodian until such time as the Participant's legal representative has been
appointed and has furnished proof satisfactory to the Custodian of his or her
right to receive payment of the shares in the Account. Upon such appointment or
upon termination of participation in the Plan for any other reason, the
Custodian will sell all assets held in the Account of the Participant and send a
check for the net proceeds of such sale to the Participant or the Participant's
legal representative, unless the Participant or his or her legal representative
elects, in writing delivered to the Custodian within thirty (30) days after the
termination, either (1) to direct that the Custodian send the Participant or his
or her legal representative a certificate for the full shares in the Account and
a check in an amount equal to the then current market value of any fractional
share, less any applicable sales commission, or (2) to direct that his or her
Account under the Plan be converted to a regular brokerage account unrelated to
the Plan, upon payment of any fee charged by the Custodian for such conversions.
4.9 SUBSCRIPTION RIGHTS. In the event the Company makes available to
its shareholders subscription rights to purchase additional shares, debentures,
or other securities, the Custodian will sell such rights at the current market
price therefor and credit the proceeds of such sale to the Participant's
Account. The proceeds of such sale will be automatically reinvested in Company
Stock on the next business day following the receipt of the proceeds by the
Custodian or as soon thereafter as practicable, but in no event later than
thirty (30) days after receipt. Any Participant who wishes to exercise his or
her rights to purchase additional securities must do so in a timely manner
sufficient to permit the Custodian to issue his or her certificates to him or
her so that the right to purchase additional securities accruing to those
certificates will flow directly to the Participant.
ARTICLE V
AMENDMENT AND TERMINATION
-------------------------
5.1. AMENDMENT OF PLAN. The provisions of this Plan may be amended at
any time and from time to time by the Company; provided, however, that:
5.1.1. No amendment can increase the duties or liabilities of
the Custodian without the consent of the Custodian;
5.1.2. No amendment can decrease the balance in any
Participant's Account; and
<PAGE> 6
5.1.3. No amendment can affect the obligation of the Employer
to pay over Contributions withheld from the Compensation of Participants to the
Custodian.
5.2. TERMINATION OF PLAN. The Company may terminate the Plan at any
time. Upon termination of the Plan, (i) the Employer will pay over to the
Custodian all Contributions withheld but not yet paid over and such
Contributions will be applied to purchase Employer Stock under the Plan, and
(ii) within thirty (30) days, the Employer will notify each Participant that the
Plan has been terminated. After the termination, the rights of Participants to
amounts held under their Accounts will be determined under the Servicing
Agreement.
ARTICLE VI
MISCELLANEOUS
-------------
6.1. NO RIGHT OF EMPLOYMENT. Neither the establishment of the Plan, nor
any modification thereof, nor the creation of any Account will give any
Participant, Associate, or other person the right to be retained in the service
of any Employer, and all Participants and other Associates will remain subject
to discharge to the same extent as if the Plan had never been adopted.
6.2. SEVERABILITY. If any provision of this Plan is held invalid or
unenforceable, such invalidity or unenforceability will not affect any other
provisions hereof, and this Plan will be construed and enforced as if such
provision had not been included.
6.3. SUCCESSORS. This Plan is binding upon the heirs, personal
representatives, successors, and assigns of the parties, including each
Associate or Participant, present and future.
6.4. CAPTIONS, GENDER AND NUMBER. The headings and captions in the Plan
are provided for convenience only, are not to be considered as part of the Plan,
and are not to be employed in the construction of the Plan. Except where
otherwise clearly indicated by context, the masculine neuter includes the
feminine neuter, the singular includes the plural, and vice versa.
6.5. RISK OF PARTICIPANTS. Each Participant assumes all risks
associated with any decrease in the value of any securities in the Participant's
Account and agrees that the Account will be the sole source of payments under
the Plan and that no Employer will be responsible for the payment of any
benefits under the Plan. The establishment and operation of this Plan by the
Employer and the Custodian do not constitute a recommendation that any person
purchase Employer Stock or any other securities. The Employer Stock available
for purchase under the Plan may or may not be a suitable investment for Eligible
Associates, and each Eligible Associate should therefore make an independent
investigation into the merits of each investment. Each Participant, by becoming
a Participant, agrees that the Participant is in no way relying on the Employer
or the Custodian for information or advice concerning the Participant's
investment decision and that the Employer and the Custodian are under no
obligation to inform the Participant of any information which the Employer or
the Custodian may possess at any time which is or may be material to the
investment decision of the Participant.
6.6. TAX EFFECTS. Each Participant, by completing an Enrollment Form,
acknowledges that the Participant is not relying on advice by any person
associated with the Employer that favorable tax effects will result from
participation in the Plan and that the Participant has been given sufficient
opportunity to consult with the Participant's own tax advisors concerning
participation in the Plan.
6.7. SECTION 16 PERSONS. Section 16 persons may not request the
Custodian to sell any shares of Company Stock held by him or her under the Plan
(other than to the issuer) unless such request is made at least six months
following the date of the most recent acquisition of the same Company Stock by
such Section 16 Person.
<PAGE> 7
6.8. MODIFICATIONS, WAIVERS, ETC. No person, including Employers,
Affiliates, Subsidiaries, the Custodian or their representatives, officers or
employees, has the power to modify, amend or waive any of the provisions of the
Plan or the Servicing Agreement except as otherwise provided in the Plan and the
Servicing Agreement. No Associate or Participant is entitled to rely on any
statement or representation of any person as to the terms of the Plan or the
Servicing Agreement.
6.9. LIABILITY OF EMPLOYER. The Employer will be liable for failure to
comply with the terms of the Plan only for its own negligence or knowing
violations of the terms of the Plan, and will have no liability for any action
or inaction of the Custodian under the Plan or the Servicing Agreement. The
Employer and Custodian will be protected in relying on any paper or documents
believed by them to be genuine and signed by the proper person or on any
information provided by or statement made by any Associate.
6.10. GOVERNING LAW. The Plan and its operations will be governed by
and construed in accordance with the laws of the State of Ohio, the federal law
of the United States of America, and the rules and regulations of the Securities
and Exchange Commission and of any exchange or market on which Employer Stock is
traded, as same are now in effect or are hereafter amended.
6.11. RIGHTS AS STOCKHOLDER. Participants will have the rights of
stockholders of the Company, The Limited, Inc., Intimate Brands, Inc. or
Abercrombie & Fitch Co., as the case may be, only as to shares of Employer Stock
actually credited to the Accounts of Participants.
6.12. NO ASSIGNMENT OF RIGHTS. No right of any Participant under the
Plan or the Servicing Agreement can be assigned, pledged, sold, given or
otherwise transferred by such Participant other than upon the death of the
Participant by will, trust, or intestate succession.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by
its duly authorized officers this day _____ of ___, 1999.
TOO, INC.
By
--------------------------------
Its
-------------------------------
<PAGE> 1
Exhibit 5
PORTER, WRIGHT, MORRIS & ARTHUR LLP
41 South High Street
Columbus, Ohio 43215
Telephone: (614) 227-2000
Fax: (614) 227-2100
December 28, 1999
Too, Inc.
3885 Morse Road
Columbus, Ohio 43219
Re: Registration Statement on Form S-8
Too, Inc. 1999 Associate Stock Purchase Plan (the "Plan")
Ladies and Gentlemen:
We have acted as counsel for Too, Inc., a Delaware corporation ("Too"),
in connection with the Registration Statement on Form S-8 (the "Registration
Statement"), filed by Too with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, with respect to the registration of 100,000
shares of Too, Inc. Common Stock, $.01 par value (the "Shares"), to be issued
under the Plan.
In connection with this opinion, we have examined such corporate
records, documents and other instruments of the registrant as we have deemed
necessary.
Based on the foregoing, we are of the opinion that the Shares will,
when issued and paid for in accordance with the provisions of the Plan, be
legally issued, fully paid and nonassessable, and entitled to the benefits of
the Plan.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Porter, Wright, Morris & Arthur LLP
PORTER, WRIGHT, MORRIS & ARTHUR LLP
<PAGE> 1
Exhibit 15
LETTER OF PRICEWATERHOUSECOOPERS LLP
REGARDING UNAUDITED INTERIM FINANCIAL STATEMENTS
Securities Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Commissioners:
We are aware that our report dated November 12, 1999 on our review of the
interim consolidated financial information of Too, Inc. (the "Company") as of
and for the thirteen and thirty-nine week periods ended October 30, 1999 and
included in the Company's quarterly report on Form 10-Q for the thirteen weeks
then ended is incorporated by reference in the Company's Registration Statement
on Form S-8 for the Too, Inc. 1999 Associate Stock Purchase Plan. Pursuant to
Rule 436(c) under the Securities Act of 1933, this report should not be
considered a report or a part of the registration statement prepared or
certified by us within the meaning of Sections 7 and 11 of that Act.
Very truly yours,
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Columbus, Ohio
December 23, 1999
<PAGE> 1
Exhibit 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 22, 1999, relating to the
financial statements, which appears in the registration statement on Form 10 for
the year ended January.
/s/ PricewaterhouseCoopers LLP
Pricewaterhouse Coopers LLP
Columbus, Ohio
December 23, 1999
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
-----------------
Each of the undersigned officers and/or directors of Too, Inc., a
Delaware corporation (the "Company"), hereby appoints Michael W. Rayden and Kent
A. Kleeberger as his or her true and lawful attorneys-in-fact, or any of them
individually with power to act without the other, as his or her true and lawful
attorney-in-fact, in his or her name and on his or her behalf, and in any and
all capacities stated below, to sign and to cause to be filed with the
Securities and Exchange Commission the Company's Registration Statement on Form
S-8 to register under the Securities Act of 1933, as amended, 100,000 shares of
the Company's Common Stock, $.01 par value, to be sold and distributed by the
Company pursuant to the Company's 1999 Associate Stock Purchase Plan (the
"Plan), and any and all amendments thereto, hereby granting unto said attorneys,
and to each of them, full power and authority to do and perform in the name and
on behalf of the undersigned, in any and all such capacities, every act and
thing whatsoever necessary to be done in and about the premises as fully as each
of the undersigned could or might do in person, hereby granting to each such
attorney full power of substitution and revocation, and hereby ratifying all
that any such attorney or his substitute may do by virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this Power of
Attorney in counterparts if necessary, effective as of November 9, 1999.
Signature Title
/s/ Michael W. Rayden Chairperson, President, Chief Executive
- ------------------------------- Officer and a Director
Michael W. Rayden (Principal Executive Officer)
/s/ Kent A. Kleeberger Vice President, Chief Financial Officer,
- ------------------------------- Secretary, and Treasurer
Kent A. Kleeberger (Principal Accounting and Financial
Officer)
/s/ Nancy Jean Kramer Director
- -------------------------------
Nancy Jean Kramer
/s/ David A. Krinsky Director
- -------------------------------
David A. Krinsky
/s/ James U. McNeal Director
- -------------------------------
James U. McNeal
/s/ Kenneth James Strottman Director
- -------------------------------
Kenneth James Strottman
