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EXHIBIT 10.3
TOO, INC.
FIRST AMENDED AND RESTATED
1999 STOCK PLAN FOR NON-ASSOCIATE DIRECTORS
(AMENDED MAY 10, 2000)
1. PURPOSE
The purpose of the Too, Inc. 1999 Stock Plan for Non Associate Directors
(the "PLAN") is to promote the interests of Too, Inc. (the "COMPANY") and
its stockholders by increasing the proprietary interest of non-associate
directors in the growth and performance of the Company by granting such
directors options to purchase shares of common stock, par value $.01 per
share, (the "SHARES") of the Company and by awarding Shares to such
directors in respect of a portion of the Retainer (as defined in Section
6(b)) payable to such directors.
2. ADMINISTRATION
The Plan shall be administered by the Company's Board of Directors (the
"BOARD"). Subject to the provisions of the Plan, the Board shall be
authorized to interpret the Plan, to establish, amend, and rescind any
rules and regulations relating to the Plan and to make all other
determinations necessary or advisable for the administration of the Plan.
The determinations of the Board in the administration of the Plan, as
described herein, shall be final and conclusive. The Secretary of the
Company shall be authorized to implement the Plan in accordance with its
terms and to take such actions of a ministerial nature as shall be
necessary to effectuate the intent and purposes thereof. The validity,
construction and effect of the Plan and any rules and regulations relating
to the Plan shall be determined in accordance with the laws of the State of
Delaware.
3. ELIGIBILITY
The class of individuals eligible to receive grants of options and awards
of Shares in respect of the Retainer under the Plan shall be directors of
the Company who are not associates of the Company or its affiliates
("ELIGIBLE DIRECTORS"). Any holder of an option or Shares granted hereunder
shall hereinafter be referred to as a "PARTICIPANT."
4. SHARES SUBJECT TO THE PLAN
Subject to adjustment as provided in Section 7, an aggregate of 50,000
Shares shall be available for issuance under the Plan. The Shares
deliverable upon the exercise of options or in respect of the Retainer may
be made available from authorized but unissued Shares or treasury Shares.
If any option granted under the Plan shall terminate for any reason without
having been exercised, the Shares subject to, but not delivered under, such
option shall be available for issuance under the Plan.
5. GRANT, TERMS AND CONDITIONS OF OPTIONS
(a) On the date of an Eligible Director's initial election to the Board,
such Eligible Director will be granted an option to purchase 5,000
Shares.
(b) Subsequently, on the date of each annual meeting of the Company's
shareholders, each Eligible Director will be granted an option to
purchase 5,000 Shares.
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(c) Eligible Directors may also be granted options to purchase Shares by
action of the Board of Directors.
(d) The options granted will be nonstatutory stock options not intended to
qualify under Section 422 of the Internal Revenue Code of 1986, as
amended and shall have the following terms and conditions:
(i) PRICE. The purchase price per Share deliverable upon the
exercise of each option shall be one hundred (100) percent of
the Fair Market Value per Share on the date the option is
granted. For purposes of the Plan, "FAIR MARKET VALUE" shall
be determined in accordance with procedures established in
good faith by the Board of Directors.
(ii) PAYMENT. Options may be exercised only upon payment of the
purchase price thereof in full. Such payment shall be made in
cash.
(iii) EXERCISABILITY AND TERMS OF OPTIONS. Options shall become
exercisable in annual 25% annual installments commencing on
the first anniversary of the date of grant, provided the
holder of such Option is an Eligible Director on such
anniversary, and shall be exercisable until the earlier of ten
(10) years from the date of grant and the expiration of the
one (1) year period provided in paragraph (iv) below.
(iv) TERMINATION OF SERVICE AS ELIGIBLE DIRECTOR. Upon termination
of a Participant's service as a director of the Company for
any reason, all outstanding options held by such Eligible
Director, to the extent then exercisable, shall be exercisable
in whole or in part for a period of one (1) year from the date
on which the Participant ceases to be a Director, provided
that in no event shall the options be exercisable beyond the
period provided for in paragraph (iii) above.
(v) NONTRANSFERABILITY OF OPTIONS. No option may be assigned
alienated, pledged, attached, sold or otherwise transferred or
encumbered by a Participant otherwise than by will or the laws
of descent and distribution, and during the lifetime of the
Participant to whom an option is granted it may be exercised
only by the Participant or by the Participant's guardian or
legal representative. Notwithstanding the foregoing, options
may be transferred pursuant to a qualified domestic relations
order.
(vi) OPTION AGREEMENT. Each option granted hereunder shall be
evidenced by an agreement with the Company which shall contain
the terms and provisions set forth herein and shall otherwise
be consistent with the provisions of the Plan.
(e) CHANGE IN CONTROL. Immediately upon a "CHANGE IN CONTROL" of the
Company, all outstanding options, whether or not vested at that time,
shall fully vest and be immediately exercisable. For purposes of the
Plan, "CHANGE IN CONTROL" means the occurrence of any of the following:
(i) Any "Person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) is or
becomes the "Beneficial Owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Corporation
representing 25% or more of the combined voting power of the
Corporation's then outstanding securities (a "25% Shareholder")
provided however, that the term 25% Shareholder shall not include any
Person if such Person would not otherwise be a 25% Shareholder but for
a reduction in the number of outstanding voting shares resulting from a
stock repurchase program or other similar plan of the Company or from a
self-tender offer of the Company, which plan or tender offer commenced
on or after the date hereof, provided, however, that the term "25%
Shareholder" shall include such Person from and after the first date
upon which (A) such Person, since the date of the commencement of such
plan or tender offer, shall have acquired Beneficial Ownership of, in
the aggregate, a number of voting shares of the Company equal to 1% or
more of the voting shares of the Company then outstanding, and (B) such
Person, together with all affiliates and associates of such Person,
shall Beneficially Own 25% or more of the voting shares of the Company
then outstanding. In calculating the percentage of the outstanding
voting shares that are Beneficially Owned by a Person for purposes of
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this subsection (e)(i), voting Shares that are Beneficially Owned by
such Person shall be deemed outstanding, and voting shares that are not
Beneficially Owned by such Person and that are subject to issuance upon
the exercise or conversion of outstanding conversion rights, exchange
rights, rights, warrants or options shall not be deemed outstanding.
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith that a Person that would otherwise be a 25%
Shareholder pursuant to the foregoing provisions of this subsection
(e)(i) has become such inadvertently, and such Person (a) promptly
notifies the Board of Directors of such status and (b)as promptly as
practicable thereafter, either divests of a sufficient number of voting
shares so that such Person would no longer be a 25% Shareholder, or
causes any other circumstance, such as the existence of an agreement
respecting voting shares, to be eliminated such that such Person would
no longer be a 25% Shareholder as defined pursuant to this subsection
(e)(i), then such Person shall not be deemed to be a 25% Shareholder
for any purposes of this Agreement. Any determination made by the Board
of Directors of the Company as to whether any Person is or is not a 25%
Shareholder shall be conclusive and binding; or
(ii) A change in composition of the Board of Directors of the
Corporation occurring any time during a consecutive two-year
period as a result of which fewer than a majority of the Board
of Directors are Continuing Directors (for purposes of this
section, the term "Continuing Director" means a director who
was either (A) first elected or appointed as a Director prior
to May 10, 2000; or (B) subsequently elected or appointed as a
director if such director was nominated or appointed by at
least a majority of the then Continuing Directors); or
(iii) Any of the following occurs:
(A) a merger or consolidation of the Corporation, other
than a merger or consolidation in which the voting
securities of the Corporation immediately prior to
the merger or consolidation continue to represent
(either by remaining outstanding or being converted
into securities of the surviving entity) 60% or more
of the combined voting power of the Corporation or
surviving entity immediately after the merger or
consolidation with another entity;
(B) a sale, exchange, or other disposition (in a single
transaction or a series of related transactions) of
all or substantially all of the assets of the
Corporation which shall include, without limitation,
the sale of assets aggregating more than 50% of the
assets of the Corporation on a consolidated basis;
(C) a liquidation or dissolution of the Corporation;
(D) a reorganization, reverse stock split, or
recapitalization of the Corporation which would
result in any of the foregoing; or
(E) a transaction or series of related transactions
having, directly or indirectly, the same effect as
any of the foregoing.
6. GRANT OF SHARES
(a) Fifty (50) percent of the Retainer of each Eligible Director shall be
paid in quarterly installments in a number of shares equal to the
quotient of (i) fifty (50) percent of the Retainer divided by (ii)
the Fair Market Value on the Retainer Payment Date. Cash shall be
paid to an Eligible Director in lieu of a fractional Share.
(b) For purposes of this Plan "RETAINER" shall mean the portion of the
annual retainer payable to an Eligible Director (as defined in
Section 3) for any fiscal quarter of the Company and "RETAINER
PAYMENT DATE" shall mean the last business day of the Company's
relevant fiscal quarter.
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7. ADJUSTMENT OF AND CHANGES IN SHARES
In the event of a stock split, stock dividend, extraordinary cash
dividend, subdivision or combination of the Shares or other change in
corporate structure affecting the Shares, the number of Shares
authorized by the Plan shall be increased or decreased
proportionately, as the case may be, and the number of Shares subject
to any outstanding option shall be increased or decreased
proportionately, as the case may be, with appropriate corresponding
adjustment in the purchase price per Share thereunder.
8. NO RIGHTS OF SHAREHOLDERS
Neither a Participant nor a Participant's legal representative shall
be, or have any of the rights and privileges of, a shareholder of the
Company in respect of any Shares purchasable upon the exercise of any
option, in whole or in part, unless and until certificates for such
Shares shall have been issued.
9. PLAN AMENDMENTS
The Plan may be amended by the Board as it shall deem advisable or to
conform to any change in any law or regulation applicable thereto
subject, to the extent deemed necessary or desirable to comply with
applicable law, to the approval of the Company's shareholders.
10. LISTING AND REGISTRATION
Each Share shall be subject to the requirement that if at any time
the Board shall determine, in its discretion, that the listing,
registration or qualification of the Shares upon any securities
exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of
such Shares, no such Share may be disposed of unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained free of any condition not acceptable to the
Board.
11. EFFECTIVE DATE AND DURATION OF PLAN
The Plan shall become effective on the date the Company's Shares are
distributed by The Limited, Inc. to its shareholders. The Plan shall
terminate the day following the tenth (10th) Annual Shareholders
Meeting of the Company at which Directors are elected succeeding such
distribution, unless the Plan is extended or terminated at an earlier
date by the Company's shareholders or is terminated by exhaustion of
the Shares available for issuance hereunder.
IN WITNESS WHEREOF, the Company has caused this First Amended and Restated Stock
Plan for Non-Associate Directors to be executed by its duly authorized officer
this 10th day of May, 2000.
TOO, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
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