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EXHIBIT 10.1
TOO, INC.
FIRST AMENDED AND RESTATED SAVINGS
AND RETIREMENT PLAN
(AMENDED MAY 10, 2000)
TABLE OF CONTENTS
PAGE
ARTICLE I INTRODUCTION......................................................22
1.1. Adoption and Effective Date...............................22
1.2. Purpose...................................................22
ARTICLE II DEFINITIONS......................................................22
2.1. Account...................................................22
2.2. Administrative Committee..................................22
2.3. Affiliate.................................................22
2.4. Aggregation Group.........................................22
2.5. Associate.................................................22
2.6. Basic Contribution........................................22
2.7. Beneficiary...............................................22
2.8. Board of Directors........................................22
2.9. Break in Service..........................................23
2.10. Change in Control.........................................23
2.11. Code......................................................24
2.12. Company...................................................24
2.13. Compensation..............................................24
2.14. Compensation Deferral Limit...............................24
2.15. Contribution Percentage Limit.............................25
2.16 Effective Date............................................25
2.17. Eligibility Computation Period............................25
2.18. Employer..................................................25
2.19. Employer Stock............................................25
2.20. Employer Stock Fund.......................................25
2.21. Enrollment and Change Designation.........................25
2.22. Enrollment Period.........................................26
2.23. ERISA.....................................................26
2.24. Highly Compensated Associate..............................26
2.25. Hour of Service...........................................26
2.26. Investment Funds..........................................26
2.27. Key Associate.............................................26
2.28. Leased Employee...........................................27
2.29. Matching Account..........................................27
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2.30. Matching Contribution.......................................27
2.31. Named Fiduciary.............................................27
2.32. Non-Highly Compensated Associate............................27
2.33. Non-Key Associate...........................................27
2.34. Normal Retirement Date......................................27
2.35. Participant.................................................27
2.36. Plan........................................................27
2.37. Plan Year...................................................27
2.38. Post-Tax Savings Account....................................27
2.39. Pre-Tax Savings Account.....................................27
2.40. Pre-Tax Savings Contribution................................27
2.41. Retirement Account..........................................27
2.42. Retirement Contribution.....................................28
2.43. Rollover Account............................................28
2.44. Rollover Contribution.......................................28
2.45. Section 16 Person...........................................28
2.46. Separation Date.............................................28
2.47. Supplemental Contribution...................................28
2.48. Taxable Wage Base...........................................28
2.49. The Limited
2.50. The Limited Plan............................................28
2.51. The Limited Stock...........................................28
2.52. The Limited Common Stock Fund...............................28
2.53. Too, Inc. Stock or Company Stock............................28
2.54. Too, Inc. Common Stock Fund.................................28
2.55. Top-Heavy Plan..............................................28
2.56. Total and Permanent Disability..............................29
2.57. Trust Agreement.............................................29
2.58. Trustee.....................................................29
2.59. Trust Fund or Trust.........................................29
2.60. Valuation Date..............................................29
2.61. Year of Eligibility Service.................................29
2.62. Year of Vesting Service.....................................29
ARTICLE III PARTICIPATION....................................................29
3.1. Eligibility.................................................29
3.2. Waiver of Participation.....................................30
3.3. Change in Status............................................30
3.4. Omission of Eligible Associate..............................30
3.5. Inclusion of Ineligible Associate...........................30
ARTICLE IV CONTRIBUTIONS......................................................30
4.1. Retirement Contributions....................................30
4.2. Pre-Tax Savings Contributions...............................31
4.3. Matching Contributions......................................32
4.4. Rollover Contributions......................................33
4.5. Timing of Contributions.....................................33
4.6. Annual Additions and Limitations............................34
4.7. Forfeitures.................................................34
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4.8. Exclusive Benefit; Refund of Contributions....................35
4.9. Account Transfers from The Limited Plan.......................35
ARTICLE V INVESTMENT OF THE TRUST FUND......................................36
5.1. Investment Direction...........................................36
5.2. Absence of Investment Direction................................36
5.3. Investment Funds...............................................36
5.4. The Limited Stock..............................................36
5.5. Investment in Too, Inc. Stock..................................37
5.6. Voting Employer Securities.....................................37
5.7. Tender Offers..................................................37
5.8. Investment Managers............................................37
ARTICLE VI VALUATIONS AND CREDITING..........................................38
6.1. Valuations.....................................................38
6.2. Credits to and Charges Against Accounts........................38
6.3. Expenses.......................................................38
6.4. Reimbursement of Trust Fund....................................38
ARTICLE VII VESTING AND SEPARATION FROM SERVICE.............................39
7.1. Vested Percentage..............................................39
7.2. Forfeiture and Restoration.....................................39
7.3. Effect of Breaks in Service....................................39
7.4. Amendments to Vesting Schedule.................................40
ARTICLE VIII BENEFITS........................................................40
8.1. Forms of Benefit Payments......................................40
8.2. Retirement Benefit.............................................41
8.3. Death Benefit..................................................42
8.4. Beneficiary Designation........................................43
8.5. In-Service Withdrawals.........................................43
8.6. Distributions for Hardship.....................................43
8.7. Post Distribution Credits......................................44
8.8. Prevention of Escheat..........................................44
ARTICLE IX TOP HEAVY PLAN PROVISIONS........................................45
9.1. Vesting Schedule Modifications.................................45
9.2. Minimum Benefits...............................................45
9.3. Adjustment in Benefit Limitations..............................45
ARTICLE X THE ADMINISTRATIVE COMMITTEE......................................46
10.1. Appointment and Tenure........................................46
10.2. Meetings: Majority Rule.......................................46
10.3. Delegation....................................................46
10.4. Reporting and Disclosure......................................46
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10.5. Construction of the Plan.......................................47
10.6. Engagement of Assistants and Advisors..........................47
10.7. Bonding........................................................47
10.8. Compensation...................................................47
10.9. Indemnification of the Administrative Committee................47
ARTICLE XI ALLOCATION OF AUTHORITY AND RESPONSIBILITIES......................47
11.1. Authority and Responsibilities of the Company..................47
11.2. Authority and Responsibilities of the Administrative
Committee......................................................48
11.3. Authority and Responsibilities of the Trustee..................48
11.4. Limitations on Obligations.....................................48
ARTICLE XII CLAIMS PROCEDURES................................................48
12.1. Application for Benefits.......................................48
12.2. Appeals of Denied Claims for Benefits..........................48
12.3. Review of Decision.............................................49
ARTICLE XIII AMENDMENT, TERMINATION, MERGERS AND CONSOLIDATIONS...............49
13.1. Amendment......................................................49
13.2. Termination....................................................49
13.3. Permanent Discontinuance of Contributions......................50
13.4. Suspension of Employer Contributions
13.5. Mergers and Consolidations of Plans............................50
13.6. Transfers of Assets to or from Plan............................50
ARTICLE XIV PARTICIPATING EMPLOYERS ..........................................50
14.1. Adoption by Other Corporations.................................50
14.2. Requirements of Participating Employers........................50
14.3. Designation of Agent...........................................51
14.4. Discontinuance of Participation................................51
14.5. Administrative Committee's Authority...........................51
ARTICLE XV MISCELLANEOUS PROVISIONS...........................................51
15.1. Nonalienation of Benefits......................................51
15.2. No Contract of Employment......................................51
15.3. Severability...................................................51
15.4. Successors.....................................................52
15.5. Captions.......................................................52
15.6. Gender and Number..............................................52
15.7. Controlling Law................................................52
15.8. Title to Assets................................................52
15.9. Payments to Minors, Etc........................................52
15.10. Risk to Participants..........................................52
15.11. Entire Agreement; Successors..................................52
15.12. Electronic and Telephonic Elections...........................52
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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.
2.8. BOARD OF DIRECTORS means the Board of Directors of the Company or the
Executive Committee of the Board.
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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.
2.10 CHANGE IN CONTROL means the occurrence of any of the following:
(a) 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 this
definition, 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
definition 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
definition, 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
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(b) 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
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
(c) Any of the following occurs:
(i) 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;
(ii) 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;
(iii) a liquidation or dissolution of the Corporation;
(iv) a reorganization, reverse stock split, or
recapitalization of the Corporation which would
result in any of the foregoing; or
(v) a transaction or series of related transactions
having, directly or indirectly, the same effect as
any of the foregoing.
2.11. CODE means the Internal Revenue Code of 1986, as now or hereafter
existing, amended, construed, interpreted, and applied by regulations,
ruling or cases.
2.12. COMPANY means Too, Inc., a Delaware corporation, and any successor
thereto.
2.13. 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.
2.14. 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:
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(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.
2.15. 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.
2.16. EFFECTIVE DATE means October 1, 1999, the date on which the Plan first
became effective.
2.17. 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.
2.18. 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.
2.19. EMPLOYER STOCK shall mean Too, Inc. Stock or The Limited Stock held in
a Participant's Account.
2.20. EMPLOYER STOCK FUND shall mean the Too, Inc. Common Stock Fund and/or
The Limited Common Stock Fund.
2.21. 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
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Compensation and the making of Pre-Tax Savings Contributions by the
Employer to the Plan and for designation of one or more Investment
Funds.
2.22. ENROLLMENT PERIOD means each calendar month of a Plan Year.
2.23. 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.
2.24. 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
2.25. 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.
2.27. KEY ASSOCIATE means a "key employee" as defined in Section 416(i) of
the Code and the regulations thereunder.
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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.
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2.42. RETIREMENT CONTRIBUTION means the amount contributed by the Employer
under Section 4.1.
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.
2.50. 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;
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(b) The aggregate account balances of Participants under any
defined contribution plan included in Section 2.6 of the Plan;
and
(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
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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 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
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<PAGE> 14
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.
(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
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<PAGE> 15
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 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")
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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 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.
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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 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.
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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.
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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 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.
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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 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.
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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.
(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.
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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%
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
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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 Administrative Committee or the Employer; or
(iii) such later date as may be specified by the Administrative
Committee.
7.5 CHANGE IN CONTROL. Upon the occurrence of a Change in Control, all
portions of the Participant's account which are not fully vested shall
become fully vested.
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:
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(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 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
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(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
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.
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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;
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<PAGE> 27
(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
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<PAGE> 28
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.
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.
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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.
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.
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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.
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;
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(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.
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.
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(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.
(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.
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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.
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.
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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,
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.
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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.
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* * *
IN WITNESS WHEREOF, the Company has caused the First Amended and Restated
Savings and Retirement Plan to be executed by its duly authorized officer this
10th day of May, 2000.
TOO, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
53
