EXHIBIT 4.2
AGREEMENT OF SUBSTITUTION AND
AMENDMENT OF RIGHTS AGREEMENT
This Agreement of Substitution and Amendment is entered into as of November
11, 2003, to be effective as of October 20, 2003 (the "Effective Date"), by and
between Too, Inc., a Delaware corporation (the "Company") and American Stock
Transfer & Trust Company, a New York banking corporation ("AST"). Capitalized
terms not otherwise defined in this Agreement of Substitution and Amendment
shall have the meanings ascribed to them in the Rights Agreement referenced
below.
RECITALS
A. On or about August 14, 2001, the Company entered into a Rights Agreement
(the "Rights Agreement") with EquiServe Trust Company, N.A., as Rights
Agent (the "Predecessor Agent").
B. The Company wishes to remove the Predecessor Agent and substitute AST as
Rights Agent pursuant to Section 21 of the Rights Agreement, and AST has
agreed to accept such substitution.
C. The Company has given the Predecessor Agent notice of removal of the
Predecessor Agent as Rights Agent.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and of other
consideration, the sufficiency of which is hereby acknowledged, the parties
agree as follows:
1. Section 21 of the Rights Agreement is hereby amended to provide that
any successor Rights Agent shall, at the time of its appointment as
Rights Agent, have a combined capital and surplus of at least $10
million, rather than $50 million.
2. The Company hereby appoints AST as rights agent pursuant to Section 21
of the Rights Agreement, to serve in that capacity for the
consideration and subject to all of the terms and conditions of the
Rights Agreement.
3. AST hereby accepts the appointment as rights agent pursuant to Section
21 of the Rights Agreement and agrees to serve in that capacity for
the consideration and subject to all of the terms and conditions of
the Rights Agreement.
4. From and after the Effective Date, each and every reference in the
Rights Agreement to a "Rights Agent" shall be deemed to be a reference
to AST.
5. AST and the Company hereby agree that from and after October 20, 2003,
Section 3(e) of the Rights Agreement shall be amended to read in its
entirety as follows:
"(e) Certificates for Common Shares issued at any time after
the Record Date and prior to the earliest of the Distribution
Date, the Redemption Date or the Expiration Date, shall have
impressed on, printed on, written on or otherwise affixed to them
the following legend:
This certificate also represents Rights that entitle the
holder hereof to certain rights as set forth in a Rights
Agreement by and between the Company and American Stock Transfer
& Trust Company, as Rights Agent (the "Rights Agreement"), the
terms and conditions of which are hereby incorporated herein by
reference and a copy of which is on file at the principal
executive offices of the Company.
Under certain circumstances specified in the Rights
Agreement, such Rights will be represented by separate
certificates and will no longer be represented by this
certificate. Under certain circumstances specified in the Rights
Agreement, Rights beneficially owned by certain persons may
become null and void. The Company will mail to the record holder
of this certificate a copy of the Rights Agreement without charge
promptly following receipt of a written request therefor."
6. AST and the Company hereby agree that from and after October 20, 2003,
Section 3(f) of the Rights Agreement shall be amended to read its
entirety as follows:
"(f) Certificates for Common Shares issued at any time on or
after the Distribution Date and prior to the earlier of the
Redemption Date or the Expiration Date shall have impressed on,
printed on, written on or otherwise affixed to them the following
legend:
This certificate does not represent any Right issued
pursuant to the terms of a Rights Agreement by and between
the Company and American Stock Transfer & Trust Company, as
Rights Agent."
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7. Section 26 of the Rights Agreement is amended to provide that notices
or demands shall be addressed as follows (until another address is
filed):
If to the Company: Too, Inc.
0000 Xxxxxx Xxxxxxx
Xxx Xxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxxxxxx
With a copy to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx, Xxxxxx Xxxxxx & Xxxxxx, LLP
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
If to AST: American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
8. Except as expressly modified herein, the Rights Agreement shall remain
in full force and effect.
9. This Agreement of Substitution and Amendment may be executed in one or
more counterparts, each of which shall together constitute one and the
same document.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date indicated above.
TOO, INC.
/s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
-----------------------------
Title: EVP - COO & CFO
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AMERICAN STOCK TRANSFER
& TRUST COMPANY
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------
Title: Vice President
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