<PAGE> 1
As filed with the Securities and Exchange Commission on October 22, 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 STOCK PLAN FOR NON-ASSOCIATE DIRECTORS
(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 Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share* Price* Fee*
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value............... 50,000 $14.5625 $728,125.00 $203.00
- ----------------------------------------------------------------------------------------------------------------------
</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 October 18, 1999.
This Registration Statement shall be deemed to cover an indeterminate number of
additional shares of Too, Inc. Common Stock, $.01 par value, as may be issuable
pursuant to future stock dividends, stock splits or similar transactions.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information concerning our 1999 Stock Plan
for Non-Associate Directors, specified in Part I, will be sent or given to our
non-associate directors 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):
o 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);
o Our Quarterly Report on Form 10-Q for the quarter ended July
31, 1999 (filed October 4, 1999);
o Our Current Report on Form 8-K dated August 23, 1999 (filed
October 1, 1999);
o 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
o 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 Plan for Non-Associate
Directors 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.
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<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:
o any breach of a director's duty of loyalty to us or our
shareholders;
o acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law;
o any transaction from which a director derived improper
personal benefit;
o the unlawful payment of dividends; and
o 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:
o is or was one of our directors or officers; or
o 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:
o is or was one of our directors, officers, employees
or agents; or
o 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.
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ITEM 8. EXHIBITS
Exhibit
Number Exhibit Description
------- --------------------------------------------------------------
4(a) Too, Inc. 1999 Stock Plan for Non-Associate Directors
(Previously filed as Exhibit 10.10 to Current Report on Form
8-K (filed October 1, 1999), and incorporated herein by
reference).
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 sales 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;
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<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
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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 October 22, 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 ) October 22, 1999
- ------------------------------- Officer, and Director )
Michael W. Rayden (Principal Executive Officer) )
)
)
/s/ Kent A. Kleeberger Vice President, Chief Financial ) October 22, 1999
- ------------------------------- Officer, Secretary, and Treasurer )
Kent A. Kleeberger (Principal Accounting and )
Financial Officer) )
)
* Nancy Jean Kramer Director ) October 22, 1999
- ------------------------------- )
Nancy Jean Kramer )
)
)
)
* David A. Krinsky Director ) October 22, 1999
- ------------------------------- )
David A. Krinsky )
)
)
)
* James U. McNeal Director ) October 22, 1999
- ------------------------------- )
James U. McNeal )
)
)
)
* Kenneth James Strottman Director ) October 22, 1999
- ------------------------------- )
Kenneth James Strottman )
)
)
)
*By: /s/ Kent A. Kleeberger
----------------------------------------
Kent A. Kleeberger, attorney-in-fact
for each of the persons indicated
</TABLE>
6
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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> 8
EXHIBIT INDEX
Exhibit
Number Exhibit Description
------- --------------------------------------------------------------
4(a) Too, Inc. 1999 Stock Plan for Non-Associate Directors
(Previously filed as Exhibit 10.10 to Current Report on Form
8-K (filed October 1, 1999), and incorporated herein by
reference).
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 5
PORTER, WRIGHT, MORRIS & ARTHUR LLP
41 South High Street
Columbus, Ohio 43215
Telephone: (614) 227-2000
Fax: (614) 227-2100
October 22, 1999
Too, Inc.
3885 Morse Road
Columbus, Ohio 43219
Re: Registration Statement on Form S-8 Too, Inc. 1999 Stock Plan
for Non-Associate Directors (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 50,000
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
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Commissioners:
We are aware that our report dated August 23, 1999 on our review of the interim
consolidated financial information of Too, Inc. (the "Company") as of and for
the thirteen and twenty-six week periods ended July 31, 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
dated October 22, 1999. 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
October 22, 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 30, 1999.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Columbus, Ohio
October 22, 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, 50,000 shares of
Common Stock, $.01 par value, to be sold and distributed by the Company pursuant
to the Company's 1999 Stock Plan for Non-Associate Directors (the "Plan") and
such, 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 September 30, 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
