<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 SAVINGS AND RETIREMENT 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............... 150,000 $16.00 $2,400,000.00 $633.60
- ---------------------------------------------------------------------------------------------------------------------
</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 Savings
and Retirement Plan, specified in Part I, will be sent or given to plan
participants 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 Savings and Retirement 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.
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.
2
<PAGE> 3
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.
Under our Savings and Retirement Plan, we will indemnify members of the
plan's administrative committee for costs, expenses, and liabilities that
members incur regarding their service on the committee, subject to the
conditions and exceptions contained in the plan.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
3
<PAGE> 4
ITEM 8. EXHIBITS
Exhibit
Number Exhibit Description
-------- --------------------------------------------------
4(a) * Too, Inc. 1999 Savings and Retirement 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
We undertake to submit our Savings and Retirement Plan to the Internal
Revenue Service in a timely manner and to make all changes required by the
Internal Revenue Service in order to qualify the Plan under Section 401(a) of
the Internal Revenue Code.
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
4
<PAGE> 5
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 (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
- ------------------------------------
Michael W. Rayden Officer, and Director )
(Principal Executive Officer) )
)
)
/s/ Kent A. Kleeberger Vice President, Chief Financial ) December 27, 1999
- ------------------------------------
Kent A. Kleeberger Officer, Secretary, and Treasurer )
(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 Savings and Retirement 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 SAVINGS AND RETIREMENT 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 Savings and Retirement 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 SAVINGS AND RETIREMENT PLAN
(October 1, 1999)
ARTICLE I
INTRODUCTION
------------
1.1. ADOPTION AND EFFECTIVE DATE. Too, Inc., a Delaware corporation
(the "Company"), hereby adopts the Too, Inc. Savings and Retirement Plan (the
"Plan") effective as of October 1, 1999.
1.2. PURPOSE. The Company adopts this Plan in order to provide eligible
associates with retirement benefits and the opportunity to reduce their current
income for Federal income tax purposes while saving for retirement. The Company
intends that the Plan shall qualify as a profit sharing plan and cash or
deferred arrangement under Sections 401(a) and 401(k) of the Internal Revenue
Code of 1986, as amended (the "Code") and meet the requirements of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and that the Trust
established in connection with the Plan shall be exempt from taxation under
Section 501(a) of the Code.
ARTICLE II
DEFINITIONS
-----------
The following terms shall have the meanings assigned in this Section,
which shall be equally applicable to the singular and plural forms of such
terms, unless the context requires otherwise, when used in this Plan.
2.1. ACCOUNT means the account maintained for a Participant under the
Plan. A Participant's Account shall consist of his or her Retirement, Pre-Tax
Savings, Post-Tax Savings, Matching and Rollover Accounts.
2.2. ADMINISTRATIVE COMMITTEE means the Savings and Retirement Plan
Committee, or its delegate, appointed by the Company under the Plan or, in the
absence of such appointment, the Company.
2.3. AFFILIATE means (i) any corporation that is a member of a
controlled group of corporations, as defined in Section 414(b) of the Code, of
which the Company is a member; (ii) any other trade or business (whether or not
incorporated) that is under common control, as defined in Section 414(c) of the
Code, with the Company; (iii) any business that is a member of an affiliated
service group, as defined in Section 414(m) of the Code, of which the Company is
a member; and (iv) any other entity required to be aggregated with the Company
pursuant to regulations under Section 414(o) of the Code.
2.4. AGGREGATION GROUP means (i) the Plan, (ii) any plan of an
Affiliate in which a Key Associate or any of a Key Associate's Beneficiaries is
a participant, (iii) any plan which enables any plan described in subsections
(i) or (ii) to meet the requirements of Sections 401(a)(4) or 410 of the Code,
and (iv) any plan of any Affiliate designated by the Company, the inclusion of
which in the Aggregation Group would not cause the Aggregation Group to fail to
meet the requirements of Sections 401(a)(4) and 410 of the Code.
2.5. ASSOCIATE means any person employed by the Employer in a category
of employment designated by the Employer as eligible for participation in the
Plan other than a person who is (i) included in a unit of employees covered by
the terms of a collective bargaining agreement under which retirement benefits
were the subject of good faith bargaining, (ii) described in Section
410(b)(3)(C) of the Code, and (iii) a Leased Employee.
2.6. BASIC CONTRIBUTION means so much of a Participant's Pre-Tax
Savings Contribution as does not exceed 3% of the Participant's Compensation.
2.7. BENEFICIARY means the beneficiary under the Plan of any
deceased Participant.
<PAGE> 2
2.8. BOARD OF DIRECTORS means the Board of Directors of the Company or
the Executive Committee of the Board.
2.9. BREAK IN SERVICE means a Plan Year in which a person is not
employed by the Employer on the last day of the Plan Year and does not complete
at least 500 Hours of Service during the Plan Year. If an Associate is absent
from work for any period by reason of pregnancy or the birth or placement for
adoption of a child, or in order to care for a child for a period immediately
following the birth or placement, then for purposes of determining whether a
Break in Service has occurred (and not for purposes of determining Years of
Eligibility Service and Years of Vesting Service) such Associate shall be
credited with the Hours of Service which otherwise normally would have been
credited to such Associate, or, if the Administrative Committee is unable to
determine the number of such Hours of Service, eight Hours of Service for each
day of such absence, not to exceed 501 Hours. The Hours of Service credited to
an Associate under this definition shall be treated as Hours of Service in the
Plan Year in which the absence from work begins, if the Associate would be
prevented from incurring a Break in Service in such year solely because of such
Hours of Service or, in any other case, in the immediately following Plan Year.
The Administrative Committee may require that the Associate certify and/or
supply documentation that his or her absence is for one of the permitted reasons
and the number of days for which there was such an absence.
For purposes of determining whether an Associate has incurred a Break
in Service, an Associate who is on unpaid leave of absence taken under the
Family and Medical Leave Act of 1993 shall be credited with the Hours of Service
with which he or she would normally have been credited if such leave had not
been taken. In addition, an Associate on such leave on the last day of a Plan
Year shall be treated as employed on such date for purposes of determining
whether a Break in Service has been incurred.
<PAGE> 3
2.10. CODE means the Internal Revenue Code of 1986, as now or hereafter
existing, amended, construed, interpreted, and applied by regulations, ruling or
cases.
2.11. COMPANY means Too, Inc., a Delaware corporation, and any
successor thereto.
2.12. COMPENSATION means amounts received from the Employer while the
Associate is a Participant which are basic salary or wages, overtime payments,
vacation, holiday and sick pay, short term disability pay, bonuses, contest
earnings or any other direct current compensation which is required to be
reflected on the Participant's Form W-2 for the Plan Year, without giving effect
to any reduction of compensation resulting from an Enrollment and Change
Designation or a salary reduction arrangement pursuant to Section 125 of the
Code, but shall not include Employer contributions to Social Security, Employer
or Associate contributions to this or any other deferred compensation plan or
program, severance pay, stock options, long term disability income payments,
relocation expense reimbursement, or the value of any other fringe benefits
provided at the expense of the Employer.
The annual Compensation of each Participant taken into account under
the Plan shall not exceed $160,000, as adjusted in accordance with Section
401(a)(17)(B) of the Code.
2.13. COMPENSATION DEFERRAL LIMIT for Highly Compensated Associates
means the greater of: (a) the average actual Pre-Tax Savings Contribution
deferral percentage of all Non-Highly Compensated Associates for the prior Plan
Year multiplied by 1.25, or
(b) the lesser of:
(i) the average actual Pre-Tax Savings Contribution
deferral percentage of Non-Highly Compensated
Associates for the prior Plan Year multiplied by two,
or
(ii) the average actual Pre-Tax Savings Contribution
deferral percentage of Non-Highly Compensated
Associates for the prior Plan Year plus two
percentage points,
as determined under Section 401(k)(3) of the Code and the regulations
thereunder. A Participant's actual Pre-Tax Savings Contribution deferral
percentage is the Participant's Pre-Tax Savings Contributions for the Plan Year,
divided by the Participant's compensation while a Participant, as defined in
Section 415(c) of the Code, without giving effect to any reduction of
compensation resulting from an Enrollment and Change Designation or any other
salary reduction arrangement.
2.14. CONTRIBUTION PERCENTAGE LIMIT for Highly Compensated Associates
means the greater of:
(a) the average contribution percentage of Non-Highly Compensated
Associates for the prior Plan Year multiplied by 1.25, or
(b) the lesser of:
(i) the average contribution percentage of Non-Highly
Compensated Associates for the prior Plan Year
multiplied by two, or
(ii) the average contribution percentage of Non-Highly
Compensated Associates for the prior Plan Year plus
two percentage points,
as determined under Section 401(m) of the Code and the regulations thereunder.
The contribution percentage of a Participant is the Matching Contributions
allocated to the Participant for the Plan Year, divided by the Participant's
compensation while a Participant, as defined in Section 415(c) of the Code,
without giving effect to any reduction of compensation resulting from an
Enrollment and Change Designation or any other salary reduction arrangement. For
purposes of determining whether the Contribution Percentage Limit has been
exceeded, amounts contributed to a Participant's Pre-Tax Savings Account
pursuant to Section 4.3(b) hereof may be treated as Matching Contributions if
such amounts have not been taken into account for purposes of determining
whether the Contribution Deferral Limit has been exceeded.
<PAGE> 4
2.15. EFFECTIVE DATE means October 1, 1999, the date on which the Plan
first became effective.
2.16. ELIGIBILITY COMPUTATION PERIOD means: (i) the initial Eligibility
Computation Period of 12 consecutive months commencing on the date during a
period of employment on which an Associate is first credited with an Hour of
Service for the performance of duties for the Employer; and (ii) each and every
full Plan Year during which the Associate is in the service of the Employer,
commencing with the Plan Year in which falls the last day of an Associate's
initial Eligibility Computation Period.
2.17. EMPLOYER means the Company and any Affiliate which elects to
become a participating employer under the Plan in accordance with the provisions
of Article XIV.
2.18. EMPLOYER STOCK shall mean Too, Inc. Stock or The Limited Stock
held in a Participant's Account.
2.19. EMPLOYER STOCK FUND shall mean the Too, Inc. Common Stock Fund
and/or The Limited Common Stock Fund.
2.20. ENROLLMENT AND CHANGE DESIGNATION means an agreement, on a form
or by a method prescribed by the Administrative Committee, between a Participant
and the Employer providing for reduction of the Participant's Compensation and
the making of Pre-Tax Savings Contributions by the Employer to the Plan and for
designation of one or more Investment Funds.
2.21. ENROLLMENT PERIOD means each calendar month of a Plan Year.
2.22. ERISA means the Employee Retirement Income Security Act of 1974,
as now or hereafter existing, amended, construed, interpreted, and applied by
regulations, rulings or cases.
2.23. HIGHLY COMPENSATED ASSOCIATE means any Associate who performs
services for the Employer during the Plan Year of determination and who, during
the prior Plan Year (A) was a 5-percent owner at any time during the year or the
preceding year, or (B) for the preceding year (i) had compensation from the
Employer in excess of $80,000 (as adjusted pursuant to Section 415(d) of the
Code, and (ii) if the Employer elects application of this clause for such
preceding year, was in the top-paid group of Associates for such preceding year.
An Associate is in the top-paid group of Associates for any year if such
Associate is in the group consisting of the top 20 percent of Associates when
ranked on the basis of compensation paid during such plan year. An Associate
shall be treated as a "5-percent owner" for any year if at the time during such
year such Associate was a 5-percent owner (as defined in Section 416(i)(1) of
the Code). For purposes of this definition, "compensation" has the meaning set
forth in Section 415(c)(3) of the Code. The determination of who is a Highly
Compensated Associate shall be made in accordance with Section 414(q) of the
Code and the regulations thereunder
2.24. HOUR OF SERVICE means (i) each hour for which a person is paid or
entitled to payment for the performance of duties for the Company or an
Affiliate during the applicable computation period, (ii) each hour for which a
person is paid or entitled to payment by the Company or an Affiliate on account
of a period of time during which no duties are performed (irrespective of
whether the employment relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), layoff, jury or military duty or
leave of absence, and (iii) each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by the Company or an
Affiliate. For the purpose of determining Years of Eligibility Service, if a
person's Hours of Service in an Eligibility Computation Period cannot be
determined without undue administrative difficulty, such person shall be
credited with 190 Hours of Service for each month in which he or she completes
one Hour of Service. Notwithstanding the foregoing, (i) not more that 501 Hours
of Service shall be credited to any person on account of any single continuous
period during which such person performs no duties, (ii) no credit shall be
granted for any period with respect to which a person receives payment or is
entitled to payment under a plan maintain solely for the purpose of complying
with applicable worker's compensation or disability insurance laws, and (iii) no
credit shall be granted for a payment which solely reimburses a person for
medical or medically-related expenses incurred by such person. Hours of Service
shall be credited to the Plan Year in which payment for such Hours of Service is
made. Determination and crediting of Hours of Service shall be made under
Department of Labor Regulations Sections 2530.200b-2 and 3.
2.26. INVESTMENT FUNDS means the funds described in Section 5.3.
<PAGE> 5
2.27. KEY ASSOCIATE means a "key employee" as defined in Section 416(i)
of the Code and the regulations thereunder.
2.28. LEASED EMPLOYEE means any person (other than an Associate) who
pursuant to an agreement between the Employer and any other person ("leasing
organization") has performed services for the Employer (or for the Employer and
related persons determined in accordance with Section 414(n)(6) of the Code) on
a substantially full time basis for a period of at least one year, and such
services are performed by Associates under the primary direction or control of
the recipient. Contributions or benefits provided to a Leased Employee by the
leasing organization which are attributable to services performed for the
Employer shall be treated as provided by the Employer. A person who would
otherwise be considered a Leased Employee shall not be considered a Leased
Employee if (i) such person is covered by a money-purchase pension plan
providing for: (A) a nonintegrated employer contribution rate of at least 10% of
compensation, as defined in Section 415(c)(3) of the Code, but including amounts
contributed pursuant to a salary reduction agreement which are excludable from
the person's gross income under Section 125, Section 402(a)(8), Section 402(h)
or Section 403(b) of the Code, (B) immediate participation, and (C) full and
immediate vesting; and (ii) Leased Employees do not constitute more than 20
percent of the Employer's Non-Highly Compensated Associates.
2.29. MATCHING ACCOUNT means the portion of the Account of a
Participant consisting of Matching Contributions, as adjusted under the Plan.
2.30. MATCHING CONTRIBUTION means the amount contributed by the
Employer under Section 4.3.
2.31. NAMED FIDUCIARY means the Administrative Committee. Each Named
Fiduciary shall have only those particular powers, duties, responsibilities and
obligations specifically given to it under this Plan or the Trust Agreement. Any
Named Fiduciary, if so appointed, may perform in more than one fiduciary
capacity.
2.32. NON-HIGHLY COMPENSATED ASSOCIATE means any Associate other than a
Highly Compensated Associate.
2.33. NON-KEY ASSOCIATE means any Associate who is not a Key Associate.
2.34. NORMAL RETIREMENT DATE means the date a Participant attains age
65.
2.35. PARTICIPANT means any person who has been admitted to
participation in the Plan and has not ceased participation in the Plan.
2.36. PLAN means Too, Inc. Savings and Retirement Plan, a profit
sharing plan with a cash or deferred feature, as set forth herein and as the
same may from time to time be amended.
2.37. PLAN YEAR means for the first Plan Year, the period beginning
October 1, 1999 and ending on the last day of the annual payroll period, and,
thereafter, the annual payroll period.
2.38. POST-TAX SAVINGS ACCOUNT means the portion of the Account of a
Participant consisting of post-tax savings contributions made while a
participant in The Limited Plan, as adjusted under the Plan.
2.39. PRE-TAX SAVINGS ACCOUNT means the portion of the account of a
Participant consisting of Pre-Tax Savings Contributions, as adjusted under the
Plan.
2.40. PRE-TAX SAVINGS CONTRIBUTION means the amount contributed by the
Employer as a result of a Participant's election on an Enrollment and Change
Designation to reduce his or her Compensation.
2.41. RETIREMENT ACCOUNT means the portion of the Account of a
Participant consisting of Retirement Contributions, as adjusted under the Plan.
2.42. RETIREMENT CONTRIBUTION means the amount contributed by the
Employer under Section 4.1.
<PAGE> 6
2.43. ROLLOVER ACCOUNT means the portion of the Account of a
Participant consisting of Rollover Contributions, as adjusted under the Plan.
2.44. ROLLOVER CONTRIBUTION means the amount contributed by an
Associate as a rollover contribution in accordance with Section 402 of the Code.
2.45. 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.
2.46. SEPARATION DATE means the date a person is no longer employed by
the Employer.
2.47. SUPPLEMENTAL CONTRIBUTION means so much of a Participant's
Pre-Tax Savings Contribution as exceeds 3% of the Participant's Compensation.
2.48. TAXABLE WAGE BASE means the contribution and benefit base in
effect under Section 230 of the Social Security Act for the first day of any
Plan Year.
2.49. THE LIMITED means The Limited, Inc., a Delaware corporation, and
any successor thereto.
2.50. THE LIMITED PLAN means the Second Restatement of The Limited
Savings and Retirement Plan, effective January 1, 1992.
2.51. THE LIMITED STOCK means stock or securities of The Limited
permitted to be held by the Plan under applicable sections of the Code and
ERISA.
2.52. THE LIMITED COMMON STOCK FUND means the fund offered as an
investment option under The Limited Plan, which is invested in The Limited
Stock.
2.53. TOO, INC. STOCK OR COMPANY STOCK means stock or securities of the
Company permitted to be held by the Plan under applicable Securities of the Code
and ERISA.
2.54. TOO, INC. COMMON STOCK FUND means the fund offered as an
investment option under the plan, which is invested in Too, Inc. Stock.
2.55. TOP-HEAVY PLAN means this Plan for any Plan Year if, on the
determination date, the top heavy ratio for the Plan (and any other Plan in the
Aggregation Group) exceeds sixty (60%) percent. The "top heavy ratio" for the
Plan (and any other Plans in the Aggregation Group) is equal to the ratio of the
sum of the amounts in (a), (b) and (c) below for Key Associates to the sum of
such amounts for all Associates who are covered by a defined contribution plan
or defined benefit plan which is aggregated in accordance with Section 2.6 of
the Plan:
(a) The present value of aggregate Account balances of
Participants in the Plan;
(b) The aggregate account balances of Participants under any
defined contribution plan included in Section 2.6 of the Plan; and
<PAGE> 7
(c) The present value (based on the actuarial assumptions as
specified in the applicable defined benefit plan) of the cumulative
accrued benefits of Participants calculated under any other defined
benefit plan included in Section 2.6 of the Plan.
2.56. TOTAL AND PERMANENT DISABILITY means a physical or mental
condition (i) of such severity and probable prolonged duration as to entitle the
Participant to disability retirement benefits under the then-existing federal
Social Security Act, or (ii) which qualifies as a total disability as defined
under long-term disability benefit plan maintained by the Employer for periods
after the disability extension period. For purposes of this Plan, a Participant
who is found to have incurred a Total and Permanent Disability shall be deemed
to have incurred a Separation Date on the date his employment terminates in
accordance with the Employer's employment policies.
2.57. TRUST AGREEMENT means the trust agreement entered into between
the Company and the Trustee to fund the benefits payable under this Plan, as the
same presently exists and as it may from time to time hereafter be amended.
2.58. TRUSTEE means the party or parties acting as such under the Trust
Agreement.
2.59. TRUST FUND OR TRUST means all of the assets of the Plan held by
the Trustee at any time under the Trust Agreement.
2.60. VALUATION DATE means any day that the New York Stock Exchange is
open for business or any other date chosen by the Administrative Committee.
2.61. YEAR OF ELIGIBILITY SERVICE means an Eligibility Computation
Period in which a person has 1,000 or more Hours of Service. For purposes of
determining whether an Associate has completed a Year of Eligibility Service, an
Associate who is on unpaid leave of absence taken under the Family and Medical
Leave Act of 1993 shall be credited with the Hours of Service with which he or
she would normally have been credited if such leave had not been taken. For
purposes of determining whether an Associate who transfers to employment with an
Employer directly from employment with The Limited or an affiliate of The
Limited has completed a Year of Eligibility Service, service with The Limited or
such affiliate of The Limited prior to August 22, 2002 shall be treated as
service with the Employer.
2.62. YEAR OF VESTING SERVICE means a Plan Year during which a person is
credited with at least 500 Hours of Service. For purposes of determining the
Years of Vesting Service for an Associate who transferred employment to the
Employer directly from employment with The Limited or an affiliate of The
Limited and who participated in The Limited Plan, service with The Limited or an
affiliate of The Limited prior to August 22, 2002 shall be treated as service
with an Employer. For purposes of determining whether an Associate has completed
a Year of Vesting Service, an Associate who is on unpaid leave of absence taken
under the Family and Medical Leave Act of 1993 shall be credited with the Hours
of Service with which he or she would normally have been credited if such leave
had not been taken.
ARTICLE III
PARTICIPATION
3.1. ELIGIBILITY.
(a) An Associate who was an active participant in The Limited
Plan on October, 1999 shall become a Participant in the Plan on the Effective
Date. Each other Associate shall become a Participant on the first day of an
Enrollment Period if, on such day, the person (i) is an Associate, (ii) has
completed one Year of Eligibility Service and (iii) has attained age 21.
(b) Participation shall cease at the earlier of the
Participant's Separation Date or the end of the Plan Year in which a Participant
ceases to be an Associate. If a Participant with a vested interest in his or her
Retirement Account and Matching Account incurs a Separation Date and is
subsequently reemployed as an Associate, the Associate shall immediately resume
participation in the Plan. If an Associate incurs five consecutive Breaks in
Service and was not vested in any portion of his or her Retirement Account and
Matching Account, the
<PAGE> 8
Associate shall, upon reemployment, be required to satisfy the requirements of
this Section as though such Associate had not previously been an Associate. If
any Years of Eligibility Service are not required to be taken into account
because of a period of Breaks in Service to which this Section applies, such
Years of Eligibility Service shall not be taken into account in applying this
Section to any subsequent Breaks in Service.
3.2. WAIVER OF PARTICIPATION. An Associate shall not have the right to
waive participation unless the Administrative Committee, in its sole discretion,
determines to allow written waivers of participation. If such waivers are
permitted, they shall be permitted on a nondiscriminatory basis and shall be
effective on a year-to-year basis only. The Administrative Committee retains the
right not to permit waivers in any year or years, even if such waivers have been
permitted in previous years.
3.3. CHANGE IN STATUS. In the event that a person who has been in the
employ of the Employer in a category of employment not eligible for
participation in this Plan subsequently becomes an Associate, he or she shall
become a Participant as of the date on which his or her change in status occurs,
if, on such date, he or she has otherwise satisfied the requirements for
participation in the Plan. If, on such date, he or she has not satisfied such
requirements, he or she will become a Participant on the date of satisfaction of
said requirements.
3.4. OMISSION OF ELIGIBLE ASSOCIATE. If, in any Plan Year, any
Associate who should have been included as a Participant in the Plan is
erroneously omitted and discovery of such omission is not made until after a
contribution by the Employer for the Plan Year has been made and allocated, the
Employer shall make a contribution with respect to the omitted Associate equal
to the amount which the Associate would have received as allocations of
Retirement Contributions had the Participant not been omitted.
3.5. INCLUSION OF INELIGIBLE ASSOCIATE. If, in any Plan Year, any
person who should not have been included as a Participant in the Plan is
erroneously included and discovery of such incorrect inclusion is not made until
after a contribution for the Plan Year has been made and allocated, the Employer
shall not be entitled to recover the contribution made with respect to the
ineligible person, and any earnings thereon, unless no deduction is allowable
with respect to such contribution. The amount contributed, together with any
earnings thereon, with respect to the ineligible person shall constitute a
forfeiture for the Plan Year in which the discovery is made.
ARTICLE IV
CONTRIBUTIONS
4.1. RETIREMENT CONTRIBUTIONS.
(a) All Retirement Contributions shall be apportioned by the
Company, in its absolute discretion, between non-service related Retirement
Contributions to be allocated under Section 4.1(b) and service-related
Retirement Contributions to be allocated under Section 4.1(c).
(b) The Employer shall make non-service related Retirement
Contributions to the Trust Fund, in cash (or other property, to the extent
permitted by law), for each Plan Year during which this Plan is in effect, equal
to (i) the sum of (A) 4% of Compensation not in excess of the Taxable Wage Base
and (B) 7% of Compensation in excess of the Taxable Wage Base for all persons
who complete 500 Hours of Service during the Plan Year and are Participants on
the last day of the calendar year, or (ii) such other greater or lesser amount
as the Company, in its absolute discretion, shall determine prior to the date on
which the contributions are required to be made. Non-service related Retirement
Contributions shall be allocated to the Retirement Accounts of all persons who
complete 500 Hours of Service during the Plan Year and are Participants on the
last day of the calendar year (i) first, by allocating such Retirement
Contributions to each Participant having Compensation in excess of the Taxable
Wage Base according to the relative amounts of such excess Compensation, but in
no event more than the lesser of 3% or the base contribution percentage of such
excess Compensation, and (ii) second, by allocating the remaining Retirement
Contributions to all Participants according to their relative amounts of
Compensation. For purposes of this Section, the term "base contribution
percentage" means the percentage of Compensation allocated to a Participant as a
non-service related Retirement Contribution with respect to Compensation not in
excess of the Taxable Wage Base.
<PAGE> 9
(c) The Employer shall make service-related Retirement
Contributions to the Trust Fund in cash for each Plan Year during which this
Plan is in effect, equal to (a) 1% of Compensation for all persons who complete
500 Hours of Service during the Plan Year, are Participants on the last day of
the calendar year, and have completed five or more Years of Vesting Service as
of the last day of the Plan Year, or (b) such greater or lesser amount as the
Employer, in its absolute discretion, shall determine prior to the date on which
the contributions are required to be made. Service-related Retirement
Contributions shall be allocated to the Retirement Accounts of all persons who
complete 500 Hours of Service during the Plan Year, are Participants on the last
day of the calendar year, and have completed five or more Years of Vesting
Service as of the last day of the Plan Year, according to their relative amounts
of Compensation.
(d) For purposes of determining whether an Associate is
eligible for an allocation of Retirement Contributions pursuant to Section
4.1(b) or 4.1(c), an Associate on unpaid leave taken under the Family and
Medical Leave Act of 1993 shall be credited with the Hours of Service with which
he or she would have normally have been credited if such leave had not been
taken and any Associate on such leave on the last day of a Plan Year shall be
treated as a Participant on such date.
4.2. PRE-TAX SAVINGS CONTRIBUTIONS.
(a) Each Participant shall be entitled to submit or modify an
Enrollment and Change Designation as of the first day of any Enrollment Period.
The Enrollment and Change Designation shall provide for reduction of the
Compensation of such Participant and a corresponding contribution to the Plan by
the Employer as a Pre-Tax Savings Contribution which shall be allocated to the
Participant's Pre-Tax Savings Account. Each Participant shall be entitled to
direct in his or her Enrollment and Change Designation that a contribution of
1%, 2% or 3% of Compensation be made as a Basic Contribution for each payroll
period of the Employer in an Enrollment Period. Each Participant whose Basic
Contributions equal 3% of Compensation for each payroll period shall also be
entitled to direct in the Enrollment and Change Designation that a contribution
of 1%, 2% or 3% of Compensation be made as a Supplemental Contribution for each
payroll period. The Administrative Committee, in its sole discretion, may permit
Supplemental Contributions in excess of 3% of Compensation. Notwithstanding the
foregoing, Pre-Tax Savings Contributions may be discontinued for the remainder
of the Enrollment Period as of any payroll period by written notice delivered to
the Employer at least 30 days prior to the last day of such payroll period (or
by such other method or such greater or lesser period prior to such date as the
Administrative Committee may establish for purposes of administrative
convenience).
(b) The Employer may at its sole discretion make fully vested
contributions to the Plan which shall be allocated to the Pre-Tax Savings
Accounts, as Supplemental Contributions, of one or more Participants who are
Non-Highly Compensated Associates, in such amounts as the Employer directs for
the purpose of assuring that the Pre-Tax Savings Contributions of Highly
Compensated Associates do not exceed the Compensation Deferral Limits.
(c) A Participant's Pre-Tax Savings Contribution for a Plan
Year, when aggregated with any pre-tax savings contributions made to any other
plan maintained by an Affiliate, shall not exceed the limitation set forth in
Section 402(g) of the Code. The Pre-Tax Savings Contribution of a Highly
Compensated Associate for a Plan Year shall not exceed the Compensation Deferral
Limit. The Administrative Committee may reduce or eliminate future Pre-Tax
Savings Contributions of some or all Highly Compensated Associates, in such
manner as the Administrative Committee determines, so as to comply with a
projected Compensation Deferral Limit. Any Pre-Tax Savings Contribution which
would exceed any applicable limit shall be returned to the Participant, together
with earnings thereon (including any gap period income), within the next
following Plan Year. To the extent that any Pre-Tax Savings Contributions are
distributed to a Highly Compensated Associate pursuant to this Section 4.2(c),
any Matching Contributions allocated to the Highly Compensated Associate with
respect to such distributed Pre-Tax Savings Contributions shall be forfeited and
applied in accordance with Section 4.7.
(d) The amount of Pre-Tax Contributions which exceed the
Compensation Deferral Limit ("excess contributions") for a Highly Compensated
Associate shall be determined in the following manner: First, the Pre-Tax
Savings Contributions of the Highly Compensated Associate(s) with the highest
dollar amount of Pre-Tax Savings Contributions is reduced to the extent
necessary to meet the Compensation Deferral Limit or cause that Highly
Compensated Associate's Pre-Tax Savings Contributions to equal the dollar amount
of the Pre-Tax Savings
<PAGE> 10
Contributions of the Highly Compensation Associate with the next highest dollar
amount of Pre-Tax Savings Contributions. This amount is then distributed to the
Highly Compensated Associate with the highest dollar amount. However, if a
lesser reduction, when added to the total dollar amount already distributed
under this step, would equal the total excess contributions, the lesser
reduction amount shall be distributed. Second, if the total dollar amount
distributed is less than the total excess contributions for the Plan Year for
all affected Highly Compensated Associates, the process is repeated until the
total dollar amount distributed equals the total excess contributions for the
Plan Year.
(e) The amount of excess contributions to be distributed shall
be reduced by excess deferrals previously distributed for the taxable year
ending in the same Plan Year and excess deferrals to be distributed for a
taxable year will be reduced by excess contributions previously distributed for
the Plan Year beginning in such taxable year.
4.3. MATCHING CONTRIBUTIONS.
(a) The Employer shall make a Matching Contribution in cash
for each Participant who makes a Basic Contribution equal to 100% of the
Participant's Basic Contribution. Matching Contributions shall be allocated to
the Matching Accounts of the Participants with respect to whom the contributions
are made.
(b) For each Plan Year, the Employer may, in its sole
discretion, make fully vested contributions to the Plan, which shall be
allocated to the Pre-Tax Savings Accounts, as Supplemental Contributions, of one
or more Participants who are Non-Highly Compensated Associates, in such amounts
as the Employer directs for the purpose of complying with applicable limits on
Matching Contributions in the Code.
(c) In the case of a Participant who is a Highly Compensated
Associate, the Matching Contributions allocated to the Participant's Account for
the Plan Year shall not exceed the Contribution Percentage Limit.
Notwithstanding anything in this Section to the contrary, the Matching
Contribution which would otherwise be made to the Accounts of Highly Compensated
Associates may be reduced or eliminated to the extent necessary so as not to
exceed the Contribution Percentage Limit. The vested portion of the Matching
Contribution which would exceed the Contribution Percentage Limit ("excess
aggregate contributions") shall be distributed to the Participant, together with
earnings thereon (including any gap period income), within the next following
Plan Year.
(d) Parallel steps taken in Section 4.2(d) for excess
contributions shall be taken to distribute any excess aggregate contributions
under the Plan.
(e) If the Pre-Tax Savings Contributions and the Matching
Contributions for a Plan Year result in the multiple use of the alternative
limitation (as defined in Section 401(m)(9) of the Code and the regulations
thereunder which are hereby incorporated by reference), the Pre-Tax Savings
Contributions and/or the Matching Contributions of the Highly Compensated
Associate shall be distributed to such Highly Compensated Associate (or, if
forfeitable under the Plan, forfeited) in accordance with Section 401(m)(9) of
the Code and the regulations thereunder as directed by the Administrative
Committee, so that there is no multiple use of the alternative limitation
4.4. ROLLOVER CONTRIBUTIONS.
An Associate may roll over a cash distribution from a qualified plan or
conduit individual retirement account to this Plan, provided that (a) the
distribution is (i) received from a qualified plan as an Eligible Rollover
Distribution (as defined in Section 8.1(b)(i)), and (ii) rolled over directly
from the qualified plan or within the 60 days following the date the Associate
received the distribution, or (b) the distribution is (i) received from a
conduit individual retirement account which has no assets other than assets
attributable to an Eligible Rollover Distribution or a "qualified total
distribution" within the meaning of Section 402 of the Code as in effect prior
to January 1, 1993, and had been deposited in the conduit individual retirement
account within 60 days of the date the Associate received the distribution, plus
earnings, (ii) eligible for tax free rollover to a qualified plan, and (iii)
rolled over within the 60 days following the date the Associate received the
distribution. The Associate shall present a written certification to the
foregoing requirements to the Administrative Committee. The Administrative
Committee may also require the Associate to provide an opinion of counsel that
the amount rolled over meets the requirements of
<PAGE> 11
this Section. The foregoing contributions, which shall be Rollover
Contributions, shall be accounted for separately and shall be credited to an
Associate's Rollover Account. An Associate shall not be permitted to withdraw
any portion of his or her Rollover Account until such time as the Associate is
otherwise eligible to make a withdrawal from or receive a distribution of his or
her Account. An Associate who has made a Rollover Contribution shall be deemed
to be a Participant with respect to his or her Rollover Account even if he or
she is not otherwise a Participant.
4.5. TIMING OF CONTRIBUTIONS.
All Pre-Tax Savings Contributions shall be made on the earliest date on
which the Pre-Tax Savings Contributions can reasonably be segregated from the
Employer's general assets, but in no event later than the 15th business day of
the month following the month in which the Pre-Tax Savings Contributions are
withheld or received by the Employer. Retirement Contributions and Matching
Contributions shall be made no later than the due date (including extensions) of
the income tax return of the Employer for the fiscal year of the Employer which
includes the last day of the Plan Year for which such contribution is made. All
contributions shall be paid over to the Trustee and shall be invested by the
Trustee in accordance with the Plan and the Trust Agreement.
4.6. ANNUAL ADDITIONS AND LIMITATIONS.
(a) Notwithstanding any other provisions of the Plan, in no
event shall the annual additions to a Participant's Account for any Plan Year
exceed the lesser of $30,000 (as adjusted in accordance with Section 415(d) of
the Code) or 25% of such Participant's compensation. All amounts contributed to
any defined contribution plan maintained by any Affiliate, other than a plan
described in Section 415(c)(6) of the Code, shall be aggregated with
contributions made by the Employer under this Plan in computing any
Participant's annual additions for a Plan Year. In no event shall the amount
allocated to the Account of any Participant be greater than the maximum amount
allowed under Section 415 of the Code with respect to any combination of plans
without disqualification of any such plan. For limitation years beginning before
January 1, 2000, in the event a Participant is a participant in a defined
benefit plan sponsored by any Affiliate, and the sum of the "defined benefit
plan fraction" and the "defined contribution plan fraction" (as such terms are
defined in Section 415(e) of the Code) would exceed 1.0 but for the operation of
this Section, the "defined contribution fraction" shall be reduced so that the
sum of the fractions shall not exceed 1.0.
(b) For purposes of this Section, the term "annual additions"
shall mean the sum credited to a Participant's Account for any limitation year
of (i) Employer contributions, (ii) Associate contributions, (iii) forfeitures
and (iv) amounts described in Code Sections 415(l)(2) and 419(A)(d)(2). In
addition, the term "compensation" means an Associate's wages, salaries, bonuses
and other amounts received for personal services actually rendered in the course
of employment with the Company or any Affiliates, but shall not include Employer
contributions to this or any other plan of deferred compensation, distributions
from a plan of deferred compensation (other than an unfunded non-qualified
plan), amounts realized from the exercise of a non-qualified stock option or
from the sale, exchange or other disposition of stock acquired under a qualified
stock option plan, and other amounts which receive special tax benefits.
(c) If a Participant's annual additions would otherwise exceed
the limitations set forth in this Section due to a reasonable error in
estimating the Participant's Compensation or the allocation of forfeitures, such
excess shall be applied as follows:
(i) The Participant's Pre-Tax Savings Contributions
for the Plan Year (including any income or loss on such
amounts for the Plan Year) shall be refunded to the
Participant to the extent necessary for the Participant's
Annual Additions to meet the limitations of this Section for
the Plan Year.
(ii) If after the operation of paragraph (i) an
excess amount continues to exist for a Participant for a Plan
Year, the excess amount shall be held unallocated in a
suspense account and used to reduce Retirement Contributions
(including any allocation of Forfeitures) and Matching
Contributions (including any allocation of Forfeitures) for
such Participant's Account as of the end of the next or
succeeding limitation year; provided, that the Participant is
covered by the Plan as of the end of that limitation year. If
the Participant is not covered by the Plan as of
<PAGE> 12
the end of that limitation year, the unallocated amounts shall
be allocated to the Accounts of all other Participants in
proportion to their Compensation for such limitation year up
to maximum limitations of this Section.
4.7. FORFEITURES. Forfeitures shall be applied to reduce contributions
in such manner as the Administrative Committee determines.
4.8. EXCLUSIVE BENEFIT; REFUND OF CONTRIBUTIONS.
(a) All contributions made by the Employer are made for the
exclusive benefit of the Participants and their Beneficiaries, and except as
otherwise permitted by law, such contributions shall not be used for or diverted
to purposes other than for the exclusive benefit of the Participants and their
Beneficiaries, including the costs of maintaining and administering the Plan and
Trust Fund.
(b) Notwithstanding the foregoing, amounts contributed to the
Trust Fund by the Employer may be refunded to the Employer under the following
circumstances and subject to the following limitations:
(i) To the extent that a federal income tax deduction
is disallowed for any contribution made by the Employer, the
Trustee shall return to the Employer the amount so disallowed
within one year of the date of such disallowance; and
(ii) In the event a contribution is made, in whole or
in part, by reason of a mistake of fact, the Trustee shall
return to the Employer so much of such contribution as is
attributable to the mistake of fact within one year after the
payment of the contribution to which the mistake applies.
(iii) In the event that the Internal Revenue Service
determines that the Plan does not initially qualify under
Section 401(a) of the Code, all assets then held under the
Plan shall be returned by the Trustee to the Employer if so
directed by the Administrative Committee. Such payment shall
be made within one year after the date on which the initial
qualification is denied. Upon receipt of such payment by the
Employer, the Plan shall be considered to be rescinded and to
be of no further force or effect.
(c) In the case of a refund described in Paragraph (i) or (ii)
of Section 4.8(b), the amount to be returned shall be the amount contributed
over the amount that would have been contributed had there not occurred a
mistake of fact or a mistake in determining the deduction. Earnings attributable
to the excess contribution may not be returned to the Employer, but losses
attributable thereto must reduce the amount to be so returned. Furthermore, if
the withdrawal attributable to the mistaken contribution would cause the balance
of the individual account of any Participant to be less than the balance which
would have been in the account had the mistaken amount not been contributed,
then the amount to be returned to the Employer must be limited to avoid such
reduction.
4.9. ACCOUNT TRANSFERS FROM THE LIMITED PLAN. The accounts under The
Limited Plan of all Associates who were active participants in The Limited Plan
on October 1, 1999, shall be transferred to this Plan as of the Effective Date.
At the discretion of the Administrative Committee, the accounts under The
Limited Plan of Associates who transfer to the Company or an Affiliate directly
from The Limited or an affiliate of The Limited subsequent to the Effective
Date, may also be transferred to the Plan.
ARTICLE V
INVESTMENT OF THE TRUST FUND
5.1. INVESTMENT DIRECTION.
(a) Each Participant shall have the right to direct, in
multiples of one percentage point, that (i) future contributions to the
Participant's Account be invested in one or more of the Investment Funds, and
(ii) the
<PAGE> 13
existing balance in the Participant's Account be invested in one or more
Investment Funds. A Participant may make or change an investment direction as of
the first day of any month of the Plan Year (or such other date or dates as the
Administrative Committee may from time to time establish), by an Enrollment and
Change Designation, made or delivered to the Administrative Committee at least
10 days prior to such date (or such greater or lesser period prior to such date
as the Administrative Committee may establish for purposes of administrative
convenience).
(b) In the case of a Participant who is a Section 16 Person:
(i) a transfer of funds from the Too, Inc.
Common Stock Fund to another Investment Fund
may only be effected by such Participant
pursuant to an election made at least six
months following the date of the most recent
election by such Participant, with respect
to any employee benefit plan of the Company,
to effect a Discretionary Transaction (as
that term is defined in Rule 16b-3 under the
Securities Exchange Act of 1934) that is an
acquisition of Too, Inc. Stock.
(ii) a transfer of funds into the Too, Inc.
Common Stock Fund from another Investment
Fund may only be effected by such
Participant pursuant to an election made at
least six months following the date of the
most recent election by such Participant,
with respect to an employee benefit plan of
the Company, to effect a Discretionary
Transaction that is a disposition of Too,
Inc. Stock.
5.2. ABSENCE OF INVESTMENT DIRECTION. Any portion of a Participant's
Account as to which the Participant fails to provide an investment direction
shall be invested by the Trustee in a fund which is designed to preserve
principal and income while maximizing current income.
5.3. INVESTMENT FUNDS. One of the Investment Funds shall be the Too,
Inc. Common Stock Fund, consisting of Too, Inc. Stock and cash or cash
equivalents needed to meet the obligations of such fund or for the purchase of
Too, Inc. Stock. The Administrative Committee shall direct the Trustee to create
and maintain one or more other Investment Funds according to investment criteria
established by the Administrative Committee. The Administrative Committee shall
have the right to direct the Trustee to merge or modify any existing Investment
Funds, or to create additional Investment Funds, after notice to Participants
investing in the affected Investment Funds.
5.4. THE LIMITED STOCK. Participants who previously participated in The
Limited Plan, whose account under that plan was invested in whole or in part in
The Limited Stock Common Stock Fund and whose account under The Limited Plan has
been transferred to this Plan pursuant to Section 4.9, shall be permitted to
continue to hold The Limited Stock in their Accounts until they direct the
Trustee to sell such stock and invest the proceeds in one or more of the other
Investment Funds available under the Plan. Participants shall not be entitled to
direct that future contributions to their Accounts be invested in The Limited
Stock or to have amounts initially invested in one of the other Investment Funds
re-invested in The Limited Stock. Cash dividends paid on The Limited Stock held
in Participants' Accounts shall be reinvested in The Limited Stock.
5.5. INVESTMENT IN TOO, INC. STOCK. One of the principal purposes of
the Plan is to provide Participants with ownership interests in the Employer,
and to the extent practicable, all available assets of the Too, Inc. Common
Stock Fund shall be used to purchase Too, Inc. Stock, which shall be held by the
Trustee until distribution or sale for distribution of cash to Participants or
Beneficiaries or until disposition is required to implement changes in
investment designations. In addition, all or any portion of any other Investment
Funds may consist of Too, Inc. Stock. Notwithstanding anything else in this Plan
to the contrary, if the Employer makes all or any part of its contribution in
the form of Too, Inc. Stock, such stock shall be held in the Too, Inc. Common
Stock Fund, which shall be held, invested and reinvested in Too, Inc. Stock.
Such percentage of the Trust Fund, up to 100%, shall be invested in Too, Inc.
Stock as results from the operation of this Section.
5.6. VOTING EMPLOYER SECURITIES. The Administrative Committee shall
have the power to direct the Trustee in the voting of all Employer Stock held by
the Trustee. All voting of Employer Stock shall be in compliance with all
applicable rules and regulations of the Securities and Exchange Commission and
all applicable
<PAGE> 14
rules of or any agreement with any stock exchange on which Employer Stock is
being voted is traded. Notwithstanding the foregoing, the Administrative
Committee may, in its sole discretion and at any time or from time to time,
permit Participants and Beneficiaries to direct the manner in which all or the
vested portion of any Employer Stock allocated to their Accounts shall be voted
on such matters as the Administrative Committee permits. Upon timely receipt of
directions under this Section from the Administrative Committee, Participant or
Beneficiary, the Trustee shall vote all Employer Stock as directed. If the
Trustee does not receive timely directions from the Administrative Committee,
Participant or Beneficiary under this Section, the Trustee shall not vote the
Employer Stock with respect to which direction was not given.
5.7. TENDER OFFERS. Each Participant and Beneficiary shall have the
sole right to direct the Trustee as to the manner in which to respond to a
tender or exchange offer for Employer Stock allocated to such person's Account.
The Administrative Committee shall use its best efforts to notify or cause to be
notified each Participant and Beneficiary of any tender or exchange offer and to
distribute or cause to be distributed to each Participant and Beneficiary such
information as is distributed in connection with any tender or exchange offer to
holders generally of Employer Stock, as the case may be, together with the
appropriate forms for directing the Trustee as to the manner in which to respond
to such tender or exchange offer. Upon timely receipt of directions under this
Section from the Participant or Beneficiary, the Trustee shall respond to the
tender or exchange offer in accordance with, and only in accordance with, such
directions. If the Trustee does not receive timely directions from a Participant
or Beneficiary under this Section, the Trustee shall not tender, sell, convey or
transfer any Employer Stock held in such person's Account in response to any
tender or exchange offer.
5.8. INVESTMENT MANAGERS. The Administrative Committee may appoint one
or more investment managers to manage all or any portion of all or any of the
Investment Funds, and one or more custodians for all or any portion of any
Investment Fund. The Administrative Committee may also establish investment
guidelines for the Trustee or any one or more investment managers and may direct
that all or any portion of the assets in an Investment Fund be invested in one
or more guaranteed investment contracts having such terms and conditions as the
Administrative Committee deems appropriate. The Administrative Committee or the
Trustee, at the direction of the Administrative Committee, may enter into such
agreements as the Administrative Committee deems advisable to carry out the
purposes of this Section.
ARTICLE VI
VALUATIONS AND CREDITING
6.1. VALUATIONS. The Trust Fund shall be valued by the Trustee at fair
market value as of the close of business on each Valuation Date. In determining
the fair market value of assets, the Trustee may appraise such assets itself or,
in its discretion, employ one or more appraisers for that purpose and rely on
the values established by such appraiser or appraisers. All Accounts shall be
maintained on a share basis.
The Administrative Committee or its delegate may, for administrative
purposes, establish unit values for one or more investment funds (or any portion
thereof) and maintain the accounts setting forth each Participant's interest in
such investment fund (or any portion thereof) in terms of such units, all in
accordance with such rules and procedures the Administrative Committee or its
delegate shall deem to be fair, equitable and administratively practicable. In
the event that unit accounting is thus established for any investment fund (or
any portion thereof) the value of a Participant's interest in that investment
fund (or any portion thereof) at any time shall be an amount equal to the then
value of a unit in such investment fund (or any portion thereof) multiplied by
the number of units then credited to the Participant.
6.2. CREDITS TO AND CHARGES AGAINST ACCOUNTS. All crediting to and
charging against Accounts shall be made as follows:
(a) First, there shall be determined the net adjusted Account
by (i) charging all distributions and withdrawals made during the period from
the prior Valuation Date to the current Valuation Date, and (ii) at the option
of the Administrative Committee, charging specifically against the Accounts of
Participants all or a portion of administrative expenses relating to the
maintenance of such Accounts.
<PAGE> 15
(b) Second, all earnings of the Trust Fund shall be allocated
to and among the Participants' Accounts according to their net adjusted Accounts
and the relative portions of such Accounts which are invested in each Investment
Fund.
(c) Last, contributions shall be credited to each
Participant's Account.
6.3. EXPENSES. All brokerage fees, transfer taxes, and other expenses
incurred in connection with the investment of the Trust Fund shall be added to
the cost of such investments or deducted from the proceeds thereof, as the case
may be. All other costs and expenses of administering the Plan shall be paid
from the Trust Fund unless the Employer elects to pay such costs and expenses.
6.4. REIMBURSEMENT OF TRUST FUND. If the operation of the intra-plan
accounting rules used in the administration of the Plan and/or the distribution
provisions of the Plan result in a loss or charge against the Trust Fund or any
portion of the Trust Fund, the Employer may in its sole discretion make an
additional contribution to the Plan to place the Trust Fund or the portion
thereof in the position it would have been in the absence of such loss or
charge. Such a contribution shall be treated as a reimbursement of the Trust
Fund and not as a contribution subject to Sections 4.1 through 4.6.
ARTICLE VII
VESTING AND SEPARATION FROM SERVICE
7.1. VESTED PERCENTAGE.
(a) A Participant shall at all times be fully vested in his or
her Pre-Tax Savings Account, Post-Tax Savings Account and Rollover Account.
(b) A Participant's Retirement Account and Matching Account
shall become fully vested at the Participant's Normal Retirement Date, or upon
his or her Total and Permanent Disability or death prior to otherwise incurring
a Separation Date. The Normal Retirement Date, Total and Permanent Disability or
death of a Participant after incurring a Separation Date shall not increase the
vesting of the Participant's Account.
(c) A Participant's vested interest in the Participant's
Retirement Account and Matching Account shall be determined under the following
table:
Years of Vesting Service Vested Percentage
------------------------ -----------------
less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
<PAGE> 16
7.2. FORFEITURE AND RESTORATION. When a Participant whose vested
percentage is less than 100% incurs a Separation Date and either receives a
distribution of the vested portion of the Participant's Account or has no vested
interest in the Plan, the nonvested portion of the Participant's Account shall
be forfeited and applied in accordance with Section 4.7. If a former Participant
whose Account has been forfeited in whole or in part becomes a Participant prior
to incurring five consecutive Breaks in Service, all amounts forfeited shall be
restored to the Participant's Account before the end of the Plan Year in which
the person becomes a Participant, such restored amounts shall come from
forfeitures from the Accounts of other Participants for the Plan Year of
restoration, or, if no such forfeitures occur during that Plan Year, from
additional Employer contributions. The vested portion of the Retirement and
Matching Accounts of a Participant who has received any distribution from the
Participant's Retirement or Matching Account shall be not less than an amount
("X") determined by the formula X = P(AB + (R) x D)) - (R) x D), where "P" is
the vested percentage at the relevant time, "AB" is the Account balance at the
relevant time, "D" is the amount of the distribution not previously repaid by
the Participant (if applicable), and "R" is the ratio of the Account balance at
the relevant time to the Account balance after distribution; the relevant time
is the time at which, under the Plan, the vested percentage in the Account
cannot increase. Such vested percentage will be adjusted to reflect forfeitures
or partial forfeitures from such Account and the restoration of principal
amounts of forfeitures.
7.3. EFFECT OF BREAKS IN SERVICE.
(a) If a person incurs five consecutive Breaks in Service and
subsequently becomes a Participant, and if the Participant was not vested in any
portion of his or her Retirement Account and Matching Account prior to the
Breaks in Service, the Years of Vesting Service completed by the Participant
prior to the Breaks in Service shall not be taken into account in determining
the Participant's vested interest in his or her Retirement Account and Matching
Account accruing after the Breaks in Service. If any Years of Vesting Service
are not required to be taken into account because of the operation of this
Section, such Years of Vesting Service shall not be taken into account in
applying this Section to any subsequent Breaks in Service. In the case of a
Participant who resumes participation in the Plan before incurring five
consecutive Breaks in Service, the Years of Vesting Service completed by the
Participant both prior to and after the Breaks in Service will be taken into
account in determining the Participant's vested interest in his or her
Retirement Account and Matching Account accruing both prior to and after the
Breaks in Service.
(b) Notwithstanding anything in this Plan to the contrary, an
individual reemployed under the Uniformed Services Employment and Reemployment
Rights Act of 1994 ("USERRA," chapter 43 of title 38, United States Code) is
treated with respect to the Plan as not having incurred a Break in Service with
the Employer by reason of such individual's period of qualified military service
(as defined in Section 414(u)(5) of the Code). Each period of such qualified
military service served by such individual is, upon reemployment, deemed with
respect to the Plan to constitute service with the Employer for the purpose of
determining the nonforfeitability of the individual's accrued benefits under the
Plan and for purposes of determining the accrual of benefits under the Plan.
Such reemployed individual is entitled to accrued benefits that are contingent
on the making of, or derived from, employee contributions or elective deferrals
only to the extent the individual makes payment to the Plan with respect to such
contributions or deferrals. No such payment may exceed the amount the individual
would have been permitted or required to contribute had the individual remained
continuously employed by the Employer throughout the period of qualified
military service. Any payment to the Plan shall be made during the period
beginning with the date of reemployment and whose duration is three times the
period of the qualified military service (but not greater than five years). The
determination of an individual's reemployment rights under USERRA shall be made
in accordance with Section 414(u) of the Code and the regulations thereunder.
7.4. AMENDMENTS TO VESTING SCHEDULE. If the vesting schedule under this
Plan is amended, (a) no such amendment shall decrease any Participant's vested
percentage, and (b) each Participant who has completed at least three Years of
Vesting Service with the Employer may irrevocably elect in writing to have the
vested percentage of his or her Account determined without regard to such
amendment. The election period shall begin on the date the amendment is adopted
and end on the latest of (i) the date 60 days after the Plan amendment is
adopted; (ii) the date 60 days after the date the Participant is issued written
notice of the Plan amendment by the
<PAGE> 17
Administrative Committee or the Employer; or (iii) such later date as may be
specified by the Administrative Committee.
ARTICLE VIII
BENEFITS
8.1. FORMS OF BENEFIT PAYMENTS.
(a) A Participant or Beneficiary shall receive any benefits to
which he or she is entitled in the form of a single sum distribution consisting
of cash and/or shares of Employer Stock. Amounts not invested in an Employer
Stock Fund shall be distributed in cash. Amounts invested in an Employer Stock
Fund shall be distributed in cash, unless the Participant or Beneficiary elects
to receive such amount in whole shares of Employer Stock (plus cash for any
fractional shares).
(b) Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a Distributee's election under this Section, a
Distributee may elect, at the time and in the manner prescribed by the
Administrative Committee, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan specified by the
Distributee in a Direct Rollover. For purposes of this Section 8.1(b), the
following definitions shall apply:
(i) ELIGIBLE ROLLOVER DISTRIBUTION. AN Eligible
Rollover Distribution is any distribution of all or any
portion of the balance to the credit of the Distributee,
except that an Eligible Rollover Distribution does not
include: any distribution that is one of a series of
substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of
the Distributee and the Distributee's designated beneficiary,
or for a specified period of ten years or more; any
distribution to the extent such distribution is required under
Section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(ii) ELIGIBLE RETIREMENT PLAN. An Eligible Retirement
Plan is an individual retirement account described in Section
408(a) of the Code, an individual retirement annuity described
in Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in
Section 401(a) of the Code, that accepts the Distributee's
Eligible Rollover Distribution. However, in the case of an
Eligible Rollover Distribution to the surviving spouse, an
Eligible Retirement Plan is an individual retirement account
or individual retirement annuity.
(iii) DISTRIBUTEE. A Distributee includes an
Associate or former Associate. In addition, the Associate's or
former Associate's surviving spouse and the Associate's or
former Associate's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Code, are Distributees with
regard to the interest of the spouse or former spouse.
(iv) DIRECT ROLLOVER. A Direct Rollover is a payment
by the Plan to the Eligible Retirement Plan specified by the
Distributee.
(c) On each Valuation Date, the Administrative Committee shall
direct the person or entity maintaining Plan records to determine the value of a
Participant's Account for which a distribution request has been made or which
may otherwise be payable. As soon as administratively practicable after the
receipt of direction from the Administrative Committee, the person or entity
maintaining Plan records shall provide the information to the Trustee. As soon
as administratively practicable after the receipt of information, the Trustee
shall distribute any benefit which is payable to a Participant or Beneficiary.
The amount of cash to be distributed to a Participant or Beneficiary shall be
the value of the Participant's Account, including the value of Employer Stock in
the Participant's Account, multiplied by the Participant's vested percentage as
of such Valuation Date. If after the Valuation Date following a distribution the
Administrative Committee determines that a Participant's vested
<PAGE> 18
percentage increased and/or that additional contributions are allocable to the
Participant's Account, a distribution shall be made of the additional
distributable amount in accordance with this Section.
8.2. RETIREMENT BENEFIT. Any Participant who has incurred a Separation
Date shall receive a retirement benefit in an amount equal to the vested portion
of the undistributed balance of the Participant's Account, as follows:
(i) if the value of the Participant's vested interest
in his or her Account exceeds $5,000 (as of the applicable
Valuation Date or as of the Valuation Date applicable to any
prior partial distribution), after the earlier of the date the
Participant requests a distribution or the Participant's
Normal Retirement Date; or
(ii) if the value of the Participant's vested
interest in his or her Account is $5,000 or less (as of the
applicable Valuation Date or as of the Valuation Date
applicable to any prior partial distribution), after the end
of the calendar quarter following the calendar quarter of the
Participant's Separation Date, unless the Participant elects
otherwise, but in no event later than the date specified in
(i) above.
Notwithstanding the foregoing, unless a Participant otherwise elects to
receive his benefit on an earlier date, distribution of the Participant's vested
interest shall be made not later than 60 days after the close of the Plan Year
in which the latest of the following occurs:
(i) the Participant reaches his Normal Retirement
Date;
(ii) the Participant's 10th anniversary of
participation in the Plan; or
(iii) the Participant's Separation Date.
Notwithstanding anything in this Plan to the contrary, a Participant's
benefits shall be paid no later than the April 1 of the calendar year following
the later of (i) the calendar year in which the Participant attains age 70-1/2,
or (ii) the calendar year in which the employee retires. Clause (ii) of this
paragraph shall not apply, except as provided in Section 409(d) of the Code, in
the case of a Participant who is a 5-percent owner (as defined in Section 416 of
the Code) with respect to the Plan Year ending in the calendar year in which the
Participant attains age 70-1/2, or for purposes of Section 408(a)(6) or (b)(3)
of the Code. If a Participant dies before receiving a distribution of his or her
vested retirement benefit, his or her Beneficiary shall receive a death benefit
in lieu of the retirement benefit. The Plan shall be operated and construed in
accordance with Section 401(a)(9) of the Code and regulations issued thereunder.
Any provision of this Section 8.2 which relates to any requirement of Section
401(a)(9) of the Code that this Plan is not legally required to comply with for
any period shall be void and shall not be applied during such period.
A Participant's election shall be made on a distribution request form
provided by the Administrative Committee and shall be effective if delivered to
the Administrative Committee by such date, before or after the applicable
Valuation Date, as the Administrative Committee establishes for purposes of
administrative convenience.
No distribution shall be made to any Participant before his Normal
Retirement Date unless (i) the prior written consent of the Participant to the
distribution has been obtained within the 90-day period ending on the date
payments are to be made or commenced, or (ii) the value of the vested portion of
the Participant's Accounts does not exceed $5,000 as of the applicable Valuation
Date.
The Administrative Committee shall notify the Participant of the right
to defer any distribution until the Participant's Normal Retirement Date. Such
notice shall be provided no less than 30 days and no more than 90 days prior to
the date that benefit payments are to be made.
Distributions may commence less than 30 days after the notice required
pursuant to the preceding paragraph is given, provided that (i) the
Administrative Committee clearly informs the Participant that the
<PAGE> 19
Participant has a right to a period of at least 30 days after receiving the
notice to consider the decision of whether or not to elect a distribution, and
(ii) the Participant, after receiving the notice, affirmatively elects a
distribution.
8.3. DEATH BENEFIT. If a Participant dies before receiving a
distribution of his or her Account, the Participant's Beneficiary shall receive
a death benefit equal to the value of the Participant's undistributed Account.
Such distribution shall be paid after the Administrative Committee is notified
of the Participant's death.
8.4. BENEFICIARY DESIGNATION.
(a) A married Participant may, with the consent of his or her
spouse, designate and from time to time change the designation of one or more
Beneficiaries or contingent Beneficiaries to receive any death benefit. The
designation and consent shall be on a form supplied by the Administrative
Committee, which form shall describe the effect of the designation on the
Participant's spouse, and shall be signed by the Participant and the
Participant's spouse. The spouse's signature shall be witnessed by a Plan
representative or a notary public. An unmarried Participant or a married
Participant whose spouse has abandoned him or her or cannot be located may
designate a Beneficiary or Beneficiaries without the consent of any other
person, after having first established to the satisfaction of the Administrative
Committee either that he or she has no spouse or that his or her spouse cannot
be located. All records of Beneficiary designations shall be maintained by the
Administrative Committee.
(b) In the event that the Participant fails to designate a
Beneficiary to receive a benefit that becomes payable under the provisions of
this Section, or in the event that the Participant is predeceased by all
designated primary and contingent Beneficiaries, (a) if the Participant is
survived by a spouse, the death benefit shall be payable to the Participant's
surviving spouse who shall be deemed to be the Participant's designated
beneficiary for all purposes under this Plan, or (b) if the Participant is not
survived by a spouse, the death benefit shall be payable to the following
classes of takers, each class to take to the exclusion of all subsequent
classes, and all members of each class to share equally unless otherwise
indicated: (i) lineal descendants (including adopted children and stepchildren),
per stirpes; (ii) surviving parents; or (iii) the Participant's estate.
8.5. IN-SERVICE WITHDRAWALS. A Participant who is fully vested in his
or her Account and who has participated in the Plan for at least five years may
obtain an in-service withdrawal from his or her Account (other than his or her
Pre-Tax Savings Account). The percentage of a Participant's Account available
for in-service withdrawal is the percentage set forth in the table below, less
the percentage of the Participant's Account previously withdrawn:
Years of Vesting Service Vested Percentage
less than 7 0%
7 or more but less than 10 10%
10 or more but less than 15 20%
15 or more 30%
In-service withdrawals must be made in multiples of five percentage points. A
request for an in-service withdrawal shall be made in such manner and on such
forms as the Administrative Committee may determine. An in-service withdrawal
shall be charged against a Participant's Account (other than his or her Pre-Tax
Savings Account) in such manner as the Administrative Committee determines.
8.6. DISTRIBUTIONS FOR HARDSHIP.
(a) A Participant who has an immediate and heavy financial
need and who has obtained all distributions, other than hardship distributions,
currently available under the Plan may receive a hardship distribution from his
or her vested Account balance. For purposes of this Plan, an immediate and heavy
financial need is the need for money for:
(i) expenses for or necessary to obtain medical care
described in Section 213(d) of the Code for the Participant or
the Participant's spouse or dependents;
<PAGE> 20
(ii) costs directly related to the purchase
(excluding mortgage payments) of a principal residence of the
Participant;
(iii) the payment of tuition and related educational
fees for the next 12 months of post-secondary education for
the Participant or the Participant's spouse, children or
dependents;
(iv) the prevention of the eviction of the
Participant from his or her principal residence; or
(v) any other similar purpose determined by the
Administrative Committee to be necessary to the maintenance of
the Participant, or the Participant's spouse or dependents.
(b) The amount of the hardship distribution shall be the
lesser of (i) the Participant's vested Account balance less income allocated to
the Participant's Pre-Tax Savings Account (other than income earned under the
Participant's pre-tax savings account under The Limited Plan that was allocated
to such account prior to January 1, 1989), or (ii) the amount of the immediate
and heavy financial need (including amounts necessary to pay reasonably
anticipated taxes and penalties on the hardship distribution). Notwithstanding
the foregoing, a Participant may not make a withdrawal for a financial hardship
in an amount less than $500 unless his or her vested Account balance (excluding
income described in the preceding sentence) is less than or equal to the amount
of the financial hardship, in which case the Participant may withdraw 100% of
his or her vested Account balance (excluding income described in the preceding
sentence). Distributions under this Section shall be deemed to be made as of the
Valuation Date preceding the date of distribution and shall reduce the
Participant's Account accordingly. Hardship distributions shall be paid in cash
and shall be charged against a Participant's Account in such manner as the
Administrative Committee determines.
(c) A Participant who has received a hardship distribution
shall not be eligible to make any Pre-Tax Savings Contributions for the 12
months after the hardship distribution. Furthermore, the Participant will be
precluded, by means of a legally enforceable agreement, from making any
contributions to any nonqualified plan of deferred compensation, including stock
option and stock purchase plans, maintained by the Employer. For the calendar
year following the calendar year of the hardship distribution, the Participant's
Pre-Tax Savings Contributions shall not exceed the limitations set forth in
Section 402(g) of the Code, less the amount of the Participant's Pre-Tax Savings
Contributions in the calendar year of the hardship distribution.
(d) A cash withdrawal pursuant to this Section 8.6 that
requires a liquidation of the Participant's interest in the Too, Inc. Common
Stock Fund, may only be made by a Participant who is a Section 16 Person if such
withdrawal is elected by such Participant at least six months following the
Participant's most recent election, with respect to any employee benefit plan of
the Company, to effect a Discretionary Transaction (as that term is defined in
Rule 16b-3 under the Securities Exchange Act of 1934) that is an acquisition of
Too, Inc. Stock.
8.7. POST DISTRIBUTION CREDITS. If, after the distribution of
retirement or death benefits under this Plan, there remain in a Participant's
Account any vested funds, or any vested funds shall be subsequently credited
thereto, such funds shall be paid to the Participant or his or her Beneficiary
as promptly as practicable.
8.8. PREVENTION OF ESCHEAT. If the Administrative Committee cannot
ascertain the whereabouts of any person to whom a payment is due under the Plan,
the Administrative Committee may place the amount of the payment in a segregated
account. If a segregated account is an interest bearing account, the interest,
which may be net of expenses, shall be credited to the segregated account. If a
segregated account holds The Limited Stock, any dividends may be treated as
earnings of the Trust Fund or of the segregated account, at the option of the
Administrative Committee. After two years from the date such payment is due, the
Administrative Committee may mail a notice of the payment to the last known
address of such person as shown on the records of the Plan and all Affiliates.
If such person has not made claim for the payment within three months after the
date of the mailing of the notice or if the notice is returned as undeliverable,
then the payment and all remaining payments which would otherwise be due to such
person shall be canceled and treated as a forfeiture. If such person later makes
a claim for payment, the amount so canceled shall be restored and paid to such
person, adjusted for any gains or losses.
<PAGE> 21
ARTICLE IX
TOP HEAVY PLAN PROVISIONS
9.1. VESTING SCHEDULE MODIFICATIONS. If the Plan is a Top-Heavy Plan,
the vesting schedule set forth in Section 7.1 shall be modified with respect to
each Participant who has an Hour of Service while the Plan is a Top-Heavy Plan
by substituting the following schedule:
Years of Vesting Service Vested Percentage
------------------------ -----------------
less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
If the Plan ceases to be a Top-Heavy Plan, the vesting schedule shall be deemed
to have been amended to be the schedule set forth in Section 7.1.
9.2. MINIMUM BENEFITS. For each Plan Year that this Plan is a Top-Heavy
Plan, the Employer shall contribute, for and on behalf of each person who is a
Participant on the last day of the Plan Year, not less than the lesser of (1) 3%
of such Participant's compensation (or 5% of such Participant's compensation if
the Participant also participates in a top-heavy defined benefit plan in the
Aggregation Group), or (b) such Participant's compensation multiplied by a
fraction, determined with respect to the Key Associate for whom the fraction is
greatest, the numerator of which is the contribution for such Key Associate for
the Plan Year (including Pre-Tax Savings Contributions) and the denominator of
which is the compensation of such Key Associate for the Plan Year. In
determining the minimum benefit, all contributions for any Participant to any
plan included in the Aggregation Group shall be taken into account. Pre-Tax
Savings Contributions for any Participant other than a Participant who is a Key
Associate shall not be taken into account in determining such 3% (or 5%)
contribution. For purposes of this Section, compensation means an Associate's
wages, salaries, bonuses and other amounts received for personal services
actually rendered in the course of employment with the Employer, but shall not
include Employer and Associate contributions to this or any other plan of
deferred compensation, distributions from a plan of deferred compensation (other
than an unfunded non-qualified plan), amounts realized from the exercise of a
non-qualified stock option or from the sale, exchange or other disposition of
stock acquired under a qualified stock option plan, and other amounts which
received special tax benefits. Compensation taken into account for a Participant
for a Plan Year shall not exceed the amount permitted under Section 401(a)(17)
of the Code.
9.3. ADJUSTMENT IN BENEFIT LIMITATIONS. In applying the provisions of
Section 4.6 where a Participant participates in both one or more defined benefit
plans and one or more defined contribution plans of the Employer, paragraphs
(2)(B) and (3)(B) of Section 415(e) of the Code shall be applied by substituting
"1.0" for "1.25", unless (i) the sum of the account balances and the present
value of the accrued benefits of Key Associates do not exceed 90% of the account
balances and the present value of the accrued benefits of all participants and
their beneficiaries, as determined under Section 416(h) of the Code, and (ii)
the Employer elects to have Section 9.2 applied by substituting "4%" for "3%"
and "7-1/2%" for "5%" therein.
ARTICLE X
THE ADMINISTRATIVE COMMITTEE
10.1. APPOINTMENT AND TENURE. The Administrative Committee shall be a
committee of not less than three and not more than five members who shall serve
at the pleasure of the Board of Directors. Any Administrative Committee member
may be dismissed or may resign at any time, with or without cause, upon 10 days'
written notice. Vacancies arising by reason of the death, resignation or removal
of an Administrative Committee member shall be filed by the Board of Directors.
If the Board of Directors fails to act, and in any event until the Board of
Directors so acts, the remaining members of the Administrative Committee may
appoint an interim Administrative Committee member to fill any vacancy occurring
on the Administrative Committee.
<PAGE> 22
10.2. MEETINGS: MAJORITY RULE. The Administrative Committee may act by
majority vote of those present taken in a meeting if all members of the
Administrative Committee have received at least 10 days' written notice of such
meeting or have waived notice and a quorum of a majority of all members is
present. The Administrative Committee may also act by majority consent in
writing without a meeting.
10.3. DELEGATION.
(a) The Administrative Committee may delegate to any of its
members or any other person the authority to sign any documents on its behalf or
to perform ministerial acts, but no such member or person shall perform any act
involving the exercise of any discretion without first obtaining the concurrence
of a majority of the members of the Administrative Committee, even through he or
she alone may sign any document required by third parties. The Administrative
Committee may elect one of its number to serve as chairman. The chairman shall
preside at all meetings of the Administrative Committee or shall delegate such
responsibility to another Administrative Committee member. The Administrative
Committee may elect one or more persons to serve as secretary or assistant
secretary of the Administrative Committee. The secretary or assistant secretary
may, but need not, be a member of the Administrative Committee. All third
parties may rely on any communication signed by the secretary or assistant
secretary, acting as such, as an official communication from the Administrative
Committee.
(b) The Administrative Committee may delegate to any division
of the discretionary authority to make decisions relating to Plan
administration, within limits and guidelines from time to time established by
the Administrative Committee. The delegated discretionary authority shall be
exercised by the division's senior Human Resources Officer, or his or her
delegate. Within the scope of the delegated discretionary authority, such
officer or person shall act in the place of the Administrative Committee and his
or her decisions shall be treated as decisions of the Administrative Committee.
10.4. REPORTING AND DISCLOSURE. The Administrative Committee shall keep
all individual and group records relating to Participants, former Participants
and Beneficiaries, and all other records necessary for the proper operation of
the Plan, except that the Administrative Committee shall have the right to
exercise such authority while conducting any review of a denied claim for
benefits. Such records shall be made available to the Employer and to each
Participant and Beneficiary for examination during business hours. A Participant
or Beneficiary may examine only such records as pertain exclusively to the
examining Participant or his or her Beneficiary and the Plan and Trust
Agreement. The Administrative Committee shall prepare and furnish to
Participants annual statements and all information required by applicable law or
the Plan. The Administrative Committee shall prepare and publish, or file with
the appropriate governmental officials, all reports and other information
required by law to be filed or published.
10.5. CONSTRUCTION OF THE PLAN. The Administrative Committee shall have
sole discretionary authority to interpret the Plan and determine all questions
arising in the administration, interpretation and application of the Plan. It
shall endeavor to act, whether by general rules or by particular decisions, so
as to treat all persons in similar circumstances uniformly. The Administrative
Committee's interpretations and determinations shall be final and binding on all
persons absent fraud or arbitrary and capricious abuse of the wide discretion
granted to the Administrative Committee. The Administrative Committee shall
provide the Trustee with instructions regarding payments of benefits. The
Administrative Committee shall provide directions to the Trustee with respect to
valuations at dates other than Valuation Dates and all other matters when called
for in the Plan or requested by the Trustee. The Administrative Committee may
waive any period of notice required under the Plan. The Administrative Committee
shall provide procedures for the determination of claims for benefits, including
procedures regarding the review of denied claims.
10.6. ENGAGEMENT OF ASSISTANTS AND ADVISORS. The Administrative
Committee shall have the right to hire such professional assistants and
consultants as it, in its sole discretion, deems necessary or advisable,
including, but not limited to investment managers and/or advisors, accountants,
actuaries, attorneys, consultants, clerical and office personnel, and medical
practitioners. To the extent that the costs for such assistants and advisors are
not paid by the Company, they shall be paid from the Trust Fund as an expense of
the Trust Fund at the direction of the Administrative Committee.
<PAGE> 23
10.7. BONDING. The Administrative Committee shall arrange for such
bonding as is required by law, but no bonding in excess of the amount required
by law shall be required under the Plan.
10.8. COMPENSATION. The members of the Administrative Committee shall
serve without compensation for their services, but all expenses of the members
in connection with administering the Plan shall be paid or reimbursed by the
Trust Fund, except to the extent paid by the Company.
10.9. INDEMNIFICATION OF THE ADMINISTRATIVE COMMITTEE. Each member of
the Administrative Committee shall be indemnified by the Company against costs,
expenses and liabilities (other than amounts paid in settlements to which the
Company does not consent) reasonably incurred by him or her in connection with
any action to which he or she may be a party by reason of his or her service as
a member of the Administrative Committee except in relation to matters as to
which he or she be adjudged in such action to be personally guilty of negligence
or willful misconduct in the performance of his or her duties. The foregoing
right to indemnification shall be in addition to such other rights as the
Administrative Committee member may enjoy as a matter of law or by reason of
insurance coverage of any kind, or otherwise. Service as an Administrative
Committee member shall be deemed in partial fulfillment of the member's function
as an associate, officer and/or director of the Company, if he or she serves in
such capacity as well.
ARTICLE XI
ALLOCATION OF AUTHORITY AND RESPONSIBILITIES
11.1. AUTHORITY AND RESPONSIBILITIES OF THE COMPANY. The Company shall
have the following authority and responsibilities:
(a) To establish and communicate to the Trustee a funding
policy for the Plan;
(b) To appoint the Trustee and the Administrative Committee,
and to monitor each of their performances;
(c) To communicate such information to the Administrative
Committee and the Trustee as each needs for the proper performance of its
duties;
(d) To provide mechanisms through which the Administrative
Committee and the Trustee can communicate with Participants and Beneficiaries;
(e) To perform such duties as are imposed by applicable law
and to serve as the Administrative Committee in the absence of an appointed
Administrative Committee; and
(f) To carry out such other duties as may be assigned to it
hereunder.
11.2. AUTHORITY AND RESPONSIBILITIES OF THE ADMINISTRATIVE COMMITTEE.
The Administrative Committee shall be the Named Fiduciary with respect to the
authority and responsibilities described in Article X.
11.3. AUTHORITY AND RESPONSIBILITIES OF THE TRUSTEE. The Trustee shall
have the powers and duties set forth in the Trust Agreement.
11.4. LIMITATIONS ON OBLIGATIONS. No Named Fiduciary shall have
authority or responsibility to deal with matters other than as delegated to it
under this Plan, under the Trust Agreement, or by operation of law. A Named
Fiduciary shall not in any event be liable for breach of fiduciary
responsibility or obligation by another fiduciary if the responsibility or
authority of the act or omission deemed to be a breach was not within the scope
of the said Named Fiduciary's authority or responsibility.
<PAGE> 24
ARTICLE XII
CLAIMS PROCEDURES
-----------------
12.1. APPLICATION FOR BENEFITS. Each Participant or Beneficiary
believing himself or herself eligible for benefits under this Plan may apply for
such benefits by completing and filing with the Administrative Committee an
application for benefits in writing. Before the date on which benefit payments
commence, each such application must be supported by such information and data
as the Administrative Committee deems relevant and appropriate.
12.2. APPEALS OF DENIED CLAIMS FOR BENEFITS. In the event that any
claim for benefits is denied, in whole or in part, the claimant shall be
notified of such denial in writing by the Administrative Committee within 90
days after the Administrative Committee receives the claim; provided, that under
special circumstances (as determined by the Administrative Committee), the
Administrative Committee may extend this period for an additional 90 days by
providing written notice of the extension to the claimant within the original 90
day period. The notice advising of the denial shall specify the reason or
reasons for denial, make specific reference to pertinent Plan provisions,
describe any additional material or information necessary for the claimant to
perfect the claim (explaining why such material or information is needed), and
shall advise the claimant of the procedure for the appeal of such denial. If the
Administrative Committee does not timely respond to a claim in writing within
the 90 day period (as extended, if applicable), the claim shall be deemed denied
for all purposes under the Plan. Appeals may be made only by the following
procedure:
(a) If a claim is denied (or deemed denied), the claimant or
his or her duly authorized representative may, within 60 days after receipt of
denial of his or her claim, submit a written request for review by the
Administrative Committee of the denied claim, review pertinent Plan documents
and submit issues and comments in writing to the Administrative Committee.
(b) The Administrative Committee shall, within 30 days of
receipt of the notice of appeal, establish a hearing date on which the claimant
may make an oral presentation to the Administrative Committee in support of his
or her appeal and the claimant shall be given not less than 10 days' notice of
the date set for the hearing.
(c) The Administrative Committee shall consider the claimant's
written and oral presentations, any facts or evidence in support of the denial
of benefits, and such other facts and circumstances as the Administrative
Committee shall deem relevant. If the claimant elects not to make an oral
presentation, the Administrative Committee shall proceed as set forth below as
though an oral presentation of the contents of the claimant's written
presentation had been made.
(d) The Administrative Committee shall render a determination
upon the appealed claim accompanied by a written statement as to the reasons
therefor within 60 days after the Administrative Committee receives the notice
of appeal, unless special circumstances or the need to hold a hearing require an
extension of up to 60 additional days. However, if the Administrative Committee
does not timely respond to the request for review in writing, the request (and
underlying claim) shall be deemed denied for all purposes under the Plan. The
determination so rendered shall be final and binding upon all parties absent
fraud or the arbitrary and capricious abuse of the wide discretion granted to
the Administrative Committee.
12.3. REVIEW OF DECISION. Any final decision of the Administrative
Committee may be reviewed by a court of competent jurisdiction only if an appeal
has been made under Section 12.2.
ARTICLE XIII
AMENDMENT, TERMINATION, MERGERS AND CONSOLIDATIONS
13.1. AMENDMENT. The provisions of this Plan may be amended at any time
and from time to time by the Board of Directors; provided, however, that, except
as otherwise permitted by law:
(a) No amendment shall increase the duties or liabilities of
the Trustee without the consent of the Trustee.
<PAGE> 25
(b) No amendment shall decrease the balance in any Account.
(c) No amendment shall provide for the use of funds or assets
held to provide benefits under this Plan other than for the benefit of
Associates and Beneficiaries, except as may be permitted by applicable law.
(d) Any amendment, other than an amendment modifying the rate
of allocation of Retirement Contributions or Matching Contributions, or an
amendment merging the Plan with another qualified plan, may be made without the
approval of the Board of Directors if recommended by the Administrative
Committee and executed by the proper officers of the Company.
13.2. TERMINATION. While it is the Company's intention to continue the
Plan indefinitely in operation, the Company nevertheless reserves the right to
terminate the Plan in whole or in part by resolution of its Board of Directors.
Termination or partial termination of the Plan shall result in full and
immediate vesting in each affected Participant of the affected portion of his or
her Account. Plan termination shall be effective as of the date specified by the
Company. The Company shall instruct the Trustee on termination of the Plan
either to continue to manage and administer the Trust Fund for the benefit of
Participants and Beneficiaries pursuant to the terms and provisions of the Trust
Agreement, or to pay over to each Participant (and deferred vested former
Participant) the value of his or her vested interest, and to thereupon dissolve
the Trust Fund. Notwithstanding the foregoing, except as permitted by Section
401(k) of the Code, no portion of a Participant's Pre-Tax Savings Account shall
be distributed prior to the Participant's retirement, death, disability,
Separation Date, attainment of age 59-1/2, or proven financial hardship.
13.3. PERMANENT DISCONTINUANCE OF CONTRIBUTIONS. While it is the
Company's intention to make substantial and recurring contributions to the Trust
Fund under the Plan, the Company nevertheless reserves the right at any time to
permanently discontinue all Company contributions. Such permanent discontinuance
shall be established by resolution of the Board of Directors and shall have the
same effect as a termination of the Plan, except that the Trustee shall not have
the authority to dissolve the Trust Fund except upon adoption of a further
resolution by the Board of Directors to the effect that the Plan is terminated
and upon receipt from the Company of instructions to dissolve the Trust Fund.
13.4. SUSPENSION OF EMPLOYER CONTRIBUTIONS. The Employer shall have the
right, at any time and from time to time, to suspend contributions to the Trust
Fund. Such suspension shall have no effect on the operation of the Plan except
as set forth below:
(a) If the Employer determines that such suspension shall be
permanent, a permanent discontinuance of contributions will be deemed to have
occurred as of the date of such determination or such earlier date as is
specified.
(b) If a temporary suspension becomes a Plan termination or a
complete discontinuance, the termination shall be deemed to have occurred on the
earlier of the date specified by the Employer or established by the
Administrative Committee or the last day of the Plan Year next following the
first Plan Year during the period of suspension in which the Employer did not
make contributions.
13.5. MERGERS AND CONSOLIDATIONS OF PLANS. In the event of any merger
or consolidation with, or transfer of assets or liabilities to, any other plan,
each Participant, deferred vested former Participant and Beneficiary shall have
a benefit in the surviving or transferee plan (determined as if such plan were
then terminated immediately after such merger) that is equal to or greater than
the benefit he or she would have been entitled to receive immediately before
such merger in the Plan in which he or she was then a Participant or with
respect to which he or she was then a deferred vested former Participant or
Beneficiary (had such Plan been terminated at that time).
13.6. TRANSFERS OF ASSETS TO OR FROM PLAN. A transfer of all or any
portion of the assets or liabilities of this Plan to any other plan, or the
transfer of all or any portion of the assets or liabilities of another plan to
this Plan, shall be on the terms and conditions set forth in (i) Section 414(1)
of the Code; (ii) resolutions of the Board of Directors, to the extent not
inconsistent with (i); (iii) a duly executed agreement approved or authorized by
the Board of Directors concerning such a transfer, to the extent not
inconsistent with (i), (ii) or (iii). The Plan shall not accept a direct or
indirect transfer of assets which would make the Plan subject to Sections
401(a)(11) and 417 of the Code with respect to any Participant.
<PAGE> 26
ARTICLE XIV
PARTICIPATING EMPLOYERS
14.1. ADOPTION BY OTHER CORPORATIONS. With the consent of the Company,
any Affiliate may adopt this Plan and all of the provisions hereof as to all or
any category of its associates, as a participating employer, by a properly
executed document evidencing the intent and will of the board of directors of
the other corporation.
14.2. REQUIREMENTS OF PARTICIPATING EMPLOYERS. Each participating
employer shall be required to use the same Trustee and Trust Agreement as
provided in this Plan, and the Trustee shall commingle, hold and invest as the
Trust Fund all contributions made by participating employers, as well as all
increments thereof.
14.3. DESIGNATION OF AGENT. With respect to all relations with the
Trustee and Administrative Committee, each participating employer shall be
deemed to have irrevocably designated the Company as its agent.
14.4. DISCONTINUANCE OF PARTICIPATION. Any participating employer may
discontinue or revoke its participating in the Plan. At the time of any such
discontinuance or revocation, satisfactory evidence thereof and of any
applicable conditions imposed shall be delivered to the Trustee. The Trustee
shall retain assets for the Associates of the discontinued employer under the
Plan.
14.5. ADMINISTRATIVE COMMITTEE'S AUTHORITY. The Administrative
Committee shall have authority to make any and all necessary rules or
regulations, binding upon all participating employers and all Participants, to
effectuate the purposes of the Plan.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1. NONALIENATION OF BENEFITS.
(a) None of the payments, benefits, or rights of any
Participant or Beneficiary shall be subject to any claim of any creditor, and,
in particular, to the fullest extent permitted by law, all such payments,
benefits, and rights shall be free from attachment, garnishment, trustee's
process, or any other legal or equitable process available to any creditor of
such Participant or Beneficiary, and no Participant or Beneficiary shall have
the right to alienate, anticipate, commute, pledge, encumber, or assign any of
the benefits or payments which he or she may expect to receive, contingently or
otherwise, under this Plan, except the right to designate a Beneficiary or
Beneficiaries as hereinbefore provided.
(b) The foregoing shall not prohibit distributions under a
"qualified domestic relations order" as defined in Section 414(p) of the Code.
The Plan Administrator shall establish a written procedure to determine the
qualified status of domestic relations orders and to administer distributions
under such qualified orders and in accordance with Section 414(p) of the Code. A
former spouse of a Participant shall be treated as his or her spouse under the
Plan only to the extent specified under a qualified domestic relations order.
(c) The Trustee may make a lump sum distribution to an
alternative payee pursuant to a qualified domestic relations order as soon as
administratively practicable following the earlier of the date a Participant
attains age 50, or the date a Participant terminates employment. In addition,
this Plan specifically authorizes distributions to an alternate payee under a
qualified domestic relations order regardless of whether the Participant has
attained the earliest retirement age (as defined in the preceding sentence and
in Section 414(p) of the Code) only if: (i) the order specifies distribution at
the earlier date or permits an agreement between the Plan and the alternate
payee authorizing an earlier distribution; and (ii) the alternate payee consents
to a distribution prior to the Participant's earliest retirement age if the
present value of the alternate payee's benefits under the Plan exceeds $5,000.
15.2. NO CONTRACT OF EMPLOYMENT. Neither the establishment of the Plan,
nor any modification thereof, nor the creation of any fund, trust or Account,
nor the payment of any benefits, shall give any Participant,
<PAGE> 27
Associate, or other person whomsoever the right to be retained in the service of
the Company and all Participants and other employees shall remain subject to
discharge to the same extent as if the Plan had never been adopted.
15.3. SEVERABILITY. If any provision of this Plan shall be held invalid
or unenforceable, such invalidity or unenforceability shall not affect any other
provision hereof, and this Plan shall be construed and enforced as if such
invalid or unenforceable provision had not been included.
15.4. SUCCESSORS. This Plan shall be binding upon the heirs, executors,
administrators, personal representatives, successors, and assigns of the
parties, including each Participant and Beneficiary, present and future.
15.5. CAPTIONS. The headings and captions herein are provided for
convenience only, shall not be considered a part of the Plan, and shall not be
employed in the construction of the Plan.
15.6. GENDER AND NUMBER. Except where otherwise clearly indicated by
context, the masculine gender shall include the feminine gender, the singular
shall include the plural, and vice versa.
15.7. CONTROLLING LAW. This Plan shall be construed and enforced
according to the laws of the State of Ohio to the extent not preempted by
federal law, which shall otherwise control.
15.8. TITLE TO ASSETS. No Participant or Beneficiary shall have any
right to, or interest in, any assets of the Trust Fund, upon termination of his
or her employment or otherwise, except to the extent of the benefits payable
under the Plan to such Participant out of the assets of the Trust Fund. All
payments of benefits under the Plan shall be made from the assets of the Trust
Fund, and neither the Company nor any other person shall be liable therefor in
any manner.
15.9. PAYMENTS TO MINORS, ETC. Any benefit payable to or for the
benefit of a minor, an incompetent person or other person incapable of
receipting therefor shall be deemed when paid to such person's guardian, to a
trustee holding assets for such person or to the party providing, or reasonably
appearing to provide, for the care of such person, and such payment shall fully
discharge the Trustee, the Administrative Committee, the Company and all other
parties with respect thereto.
15.10. RISK TO PARTICIPANTS. Each Participant assumes all risks
associated with any decrease in the value of any securities in the Trust Fund
and agrees that the Trust Fund shall be the sole source of payments under the
Plan and no Affiliates or members of the Administrative Committee shall be
responsible of for the payment of any benefits under the Plan.
15.11. ENTIRE AGREEMENT; SUCCESSORS. This Plan, including any election
agreements and any amendments thereto, shall constitute the entire agreement
between the Company and the Participant. No oral statement regarding the Plan
may be relied upon by the Participant. This Plan and any amendment shall be
binding on the parties thereto and their respective here is, administrators,
trustees, successors and assigns, and on all Beneficiaries. By becoming a
Participant, each Associate shall be conclusively deemed to have assented to the
provisions of the Plan and the Trust Agreement and to any amendments thereto.
15.12. ELECTRONIC AND TELEPHONIC ELECTIONS. Notwithstanding any
provision in this Plan to the contrary, salary reduction agreements and
cancellations or amendments thereto, investment elections, changes or transfers,
loans, withdrawals decisions, and any other decision or election by a
Participant (or Beneficiary) under this Plan may be accomplished by electronic
or telephonic means which are not otherwise prohibited by law and which are in
accordance with procedures and/or systems approved or arranged by the
Administrative Committee or its delegates.
* * *
IN WITNESS WHEREOF, the Company has caused the Plan to be executed by
its duly authorized officers this ___ day __________, 1999.
TOO, INC.
<PAGE> 28
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 Savings and Retirement 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 150,000
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 Savings and Retirement 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
PricewaterhouseCoopers 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, 150,000 shares of
the Company's Common Stock, $.01 par value, to be sold and distributed by the
Company pursuant to the Company's 1999 Savings and Retirement 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
