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EXHIBIT 10.2
TOO, INC.
FIRST AMENDED AND RESTATED
SUPPLEMENTAL RETIREMENT AND DEFERRED
COMPENSATION PLAN
(AMENDED MAY 10, 2000)
ARTICLE I
INTRODUCTION
1.1. Too, Inc., a Delaware corporation (the "Company"), hereby establishes
the Too, Inc. Supplemental Retirement Plan (the "Plan") in order to
provide eligible associates of the Company and its Affiliates with
certain benefits that cannot be provided to such associates under the
Too, Inc., Inc. Savings and Retirement Plan ("SARP") because of the
limitations imposed by Sections 401(a)(17) and 415 of the Internal
Revenue Code. The Plan is also intended to provide an opportunity for
income deferral to certain associates of the Company and its Affiliates
who were excluded from eligibility to make pre-tax deferrals under the
SARP in order to enable the SARP to satisfy the nondiscrimination
requirements imposed by Sections 401(k) and 401(m) of the Code.
1.2. The Company intends for the Plan to be an unfunded deferred
compensation plan for a select group of management and highly
compensated associates within the meaning of United States Department
of Labor regulations Section 2520.104-23.
1.3 For purposes of communicating with Plan Participants, those provisions
of this Plan which govern Deferral Credits and Matching Credits may be
referred to as the "Alternative Savings Plan" and those provisions
governing Supplemental Credits and Discretionary Credits may be
referred to as the "Supplemental Retirement Plan" or "SERP".
ARTICLE II
DEFINITIONS
Whenever the following words and phrases are used in this document, they shall
have the meanings stated below unless a different meaning is plainly required by
the context:
2.1. "ACCOUNT" means the account maintained by the Committee and the
Employer reflecting the accrued benefit of a Participant under the
Plan. With respect to Participants who were participants in The
Limited, Inc. Supplemental Retirement Plan and/or The Limited, Inc.
Deferred Compensation Plan as of September 30, 1999, the Account of
each such Participant shall be credited with all amounts credited to
such Participant's accounts under such plans as of such date.
2.2. "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; and (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.
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2.3. "BENEFICIARY" means the person or persons designated by a Participant
as his or her beneficiary or beneficiaries under the SARP.
2.4 "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
(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
to May 10, 2000; or (B) subsequently elected or appointed as a
director if such director was nominated or appointed by at
least a majority of the then Continuing Directors); or
(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;
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(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.
2.5. "CODE" means the Internal Revenue Code of 1986, as now existing or
hereinafter amended, and regulations issued thereunder.
2.6. "COMMITTEE" means the Administrative Committee under the SARP.
2.7. "COMPANY" means Too, Inc., a Delaware corporation, and its successors.
2.8. "COMPENSATION" means compensation subject to deferral under the SARP
without taking into account the limitations of Code Section 401(a)(17).
2.9. "COMPENSATION COMMITTEE" means the Compensation Committee of the
Company's Board of Directors.
2.10. "DEFERRAL ACCOUNT" means the portion of a Participant's Account derived
from Deferral Credits.
2.11. "DEFERRAL AGREEMENT" means an agreement, in a form prescribed by the
Committee, by which a Participant may elect to defer receipt of a
portion of his or her Compensation pursuant to Section 4.1.
2.12. "DEFERRAL CREDITS" means the amounts credited to a Participant's
Account pursuant to Section 5.2.
2.13 "DISCRETIONARY ACCOUNT" means the portion of a Participant's Account
derived from Discretionary Credits.
2.14. "DISCRETIONARY CREDITS" means the amounts credited to a Participant's
Account pursuant to Section 5.5.
2.15. "EFFECTIVE DATE" means October 1, 1999, the effective date of the Plan
as set forth herein.
2.16. "EMPLOYER" means the Company and each Affiliate that is a participating
employer under the SARP and that elects to participate in the Plan by
action of its board of directors.
2.17. "MATCHING ACCOUNT" means the portion of a Participant's Account derived
from Matching Credits.
2.18. "MATCHING CONTRIBUTIONS" means the matching contributions made by the
Employer for the benefit of Participants in accordance with the terms
of the SARP.
2.19. "MATCHING CREDITS" means the amounts credited to a Participant's
Account pursuant to Section 5.3.
2.20. "PARTICIPANT" means an associate of the Employer who is eligible to
receive Supplemental, Deferred, Matching or Discretionary Credits
pursuant to Section 3.1 of the Plan.
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2.21. "PLAN" means the Too, Inc. Supplemental Retirement and Deferred
Compensation Plan, as set forth herein and as amended from time to
time.
2.22. "PLAN YEAR" means the calendar year.
2.23. "RETIREMENT CONTRIBUTIONS" means the retirement contributions made by
the Employer for the benefit of Participants in accordance with the
terms of the SARP.
2.24. "SARP" means the Too, Inc. Savings and Retirement Plan.
2.25. "SARP LIMITATIONS" means the limitations imposed by Sections 401(a)(17)
and 415 of the Code on the amount that may be contributed by an
Employer to the SARP on behalf of a Participant.
2.26. "SUPPLEMENTARY ACCOUNT" means the portion of a Participant's Account
derived from Supplementary Credits.
2.27. "SUPPLEMENTARY CREDITS" means the amounts credited to a Participant's
Account pursuant to Section 5.4.
2.28. "TERMINATION OF EMPLOYMENT" means the termination of a Participant's
employment with the Company and its Affiliates for any reason.
ARTICLE III
PARTICIPATION
3.1. PARTICIPATION. An associate of the Employer who is eligible to
participate in the SARP will automatically become a Participant in the
Plan for purpose of receiving Supplemental Credits if the amount of
Retirement Contributions made on behalf of such associate under the
SARP are limited by the SARP Limitations. The Committee may from time
to time designate certain other management and highly compensated
associates of the Employer, including associates who are not
participants in the SARP, as eligible to participate in the Plan for
purposes of receiving Supplemental Credits. The Committee shall
designate which associates of the Company and its Affiliates are
eligible to participate in the Plan for purposes of receiving Deferral
Credits, Matching Credits and Discretionary Credits.
3.2. DURATION OF PARTICIPATION. An associate eligible to participate in the
Plan shall continue to be a Participant until the Committee revokes
such designation or the associate incurs a Termination.
ARTICLE IV
DEFERRAL OF COMPENSATION
4.1. ELECTION TO DEFER. A Participant who is eligible to receive Deferral
Credits may elect to defer a portion of the Compensation otherwise
payable to him or her by filing a Deferral Agreement with the Employer.
The Deferral Agreement must be filed with the Employer prior to the
first day of the Plan Year to which it relates. If an associate first
becomes a Participant after the first day of a Plan Year, he or she
must file a Deferral Agreement with the Employer within thirty (30)
days after the date on which he or she first became a Participant in
order to defer a portion of his or her Compensation during such Plan
Year. A Deferral Agreement shall only apply to Compensation earned
after the date on which the Deferral Agreement is filed with the
Employer.
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4.2. AMOUNT OF DEFERRAL. The portion of Compensation payment of which may be
deferred pursuant to the Plan must be in whole percentage points of
Compensation, and shall not exceed three percent (3%) of the
Compensation of the Participant.
4.3. MODIFICATION OF DEFERRAL AGREEMENT. A Deferral Agreement shall remain
in full force and effect until modified or terminated by the filing of
a new Deferral Agreement with the Employer. A new Deferral Agreement
shall only apply to Compensation earned by the Participant after the
end of the Plan Year in which such Deferral Agreement is filed with the
Employer. In the event a Participant terminates his or her Deferral
Agreement, the Participant may resume deferrals under the Plan by
completing a new Deferral Agreement to be effective as of the first day
of the next Plan Year.
ARTICLE V
MAINTENANCE OF ACCOUNTS
5.1 ACCOUNTS. The Employer and the Committee shall maintain on the
Employer's books and records an Account for each Participant that shall
be adjusted to reflect credits under this Article V and payments and
forfeitures under Articles VI and VII. In the event that the Company
establishes a reserve pursuant to Section 9.5, the Company may, in its
discretion, adjust the Accounts of Participants as of each Valuation
Date to reflect the investment performance of such reserve. Such
adjustment shall be made on a pro-rata basis by assuming that an equal
percentage of each Account under the Plan is invested in the reserve.
The Employer or the Committee may, from time to time, assess reasonable
service charges against all or any portion of the Accounts to defray
costs associated with the implementation and administration of the
Plan. Payments under the Plan shall be charged against Accounts on the
date on which the payments are made and forfeitures shall be charged on
the date of Termination of Employment.
5.2. DEFERRAL CREDITS. As of the last day of each calendar month, the
Deferral Account of each Participant eligible to receive Deferral
Credits shall be credited with Deferral Credits equal to the amount of
Compensation deferred by the Participant for such month under Article
IV.
5.3. MATCHING CREDITS. As of the last day of each calendar month, the
Account of each Participant for whom a Deferral Credit is made shall be
credited with a Matching Credit in an amount equal to two (2) times the
Participant's Deferral Credit for such month or such greater or lesser
amounts as the Employer shall determine prior to the date on which the
Compensation to which the related Deferral Credit is deferred.
5.4. SUPPLEMENTARY CREDITS. As of the last day of each Plan Year, the
Supplementary Account of each Participant who is still a Participant on
such date shall be credited with a Supplementary Credit equal to the
amount of Retirement Contributions not credited to the Participant
under the SARP because of the limitations imposed by the SARP
Limitations.
5.5 DISCRETIONARY CREDITS. As of the last day of each Plan Year, and as of
such other dates as the Compensation Committee may determine, the
Discretionary Account of a Participant may be credited with
Discretionary Credits. The determination as to which Participants, if
any, shall be entitled to receive Discretionary Credits, and the amount
of such Discretionary Credits, shall be made by the Compensation
Committee in its sole discretion.
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5.6. EARNINGS CREDITED. The Committee shall establish a rate of return to be
applied to each Participant's Account. The Committee may establish
different rates to apply to the portion of a Participant's Account
attributable to Deferral Credits, Matching Credits, Supplementary
Credits and Discretionary Account and may establish different rates for
different portions of the Plan Year. The rates established by the
Committee shall be based on such interest rate related factors or
indicia as the Committee deems appropriate, including but not limited
to the Employer's cost of funds or cost of borrowing. Such rate or
rates shall be applied as of the last day of each Plan Year to the
Account balance at the beginning of the Plan Year less the amount of
any payments and forfeitures from the Account during such Plan year.
5.7. PARTICIPANT STATEMENTS. A written statement indicating the total amount
credited to a Participant's Account shall be furnished by the Committee
to the Participant not more than ninety (90) days after the end of each
Plan Year. All statements shall be based on the net value of the
Accounts as of the last day of the Plan Year, to the extent such values
are available to the Committee.
ARTICLE VI
VESTING
6.1. VESTED PERCENTAGE. A Participant shall at all times be 100 percent
vested in his or her Deferral Account. A Participant's vested
percentage in his or her Matching Account, Supplementary Account and
Discretionary Account shall be equal to the Participant's vested
percentage in his or her Retirement Account and Matching Account under
the SARP, determined as of the date any payment is to be made. The
portion of a Participant's Account that is not fully vested shall be
forfeited on the date of the Participant's Termination of Employment.
6.2. ACCELERATION OF VESTING. The Committee, in its sole discretion, shall
have the power to accelerate the rate of vesting of all or any portion
of any Account to such extent and at such times as may be in the best
interest of the Employer and the Participant.
6.3 CHANGE IN CONTROL. Upon the occurrence of a Change in Control, all
portions of the Participant's Account that are not fully vested shall
become fully vested.
ARTICLE VII
PAYMENTS
7.1 TERMINATION OF EMPLOYMENT. The vested portion of the Account of a
Participant shall be paid by the Employer to the Participant in a
single lump sum cash distribution as soon as practicable following the
Participant's Termination of Employment, but in no event earlier than
thirty (30) days following the date of the Participant's Termination of
Employment.
7.2. RIGHT OF COMPANY TO OFFSET AND WITHHOLD. If the Employer determines
that a Participant is for any reason indebted to the Employer or any
Affiliate, the Employer may offset such indebtedness, including any
interest accruing thereon, against payments otherwise due under the
Plan to such Participant or such Participant's Beneficiary. The
Employer shall also have the right to withhold from any payments due
under the Plan the amount of any federal, state or local taxes required
by law to be withheld from such payments.
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ARTICLE VIII
ADMINISTRATION AND CLAIMS
8.1. MEMBERSHIP; PROCEDURES; AUTHORITY AND RESPONSIBILITIES. The Committee
shall operate under the same rules and procedures as the administrative
committee under the SARP. The Committee may assign all or some of its
duties hereunder to officers or other associates of the Company. The
Committee shall have, in addition to the powers and responsibilities
specifically provided for in this Plan, all of the powers and
responsibilities granted to the administrative committee under the SARP
that are applicable to the administration and operation of this Plan,
including the authority to interpret the Plan, to adopt and revise
rules and regulations relating to the Plan, and to make any other
determinations which it believes to be necessary or advisable for the
administration of the Plan. Determinations and decisions by the
Committee shall be final and binding on associates, Participants and
all other persons except that denied claims for benefits shall be
subject to review pursuant to Section 8.2. Any determination under the
SARP that is relevant to the administration of this Plan shall be
effective under this Plan as well as under the SARP.
8.2. CLAIMS PROCEDURES. All claims for benefits must be made under the rules
and procedures then if effect under the SARP, including the SARP's
procedures with respect to review of denied claims.
8.3. INCORPORATION BY REFERENCE. The provisions of the SARP related to its
administrative committee, administrative procedures and claims
procedures are hereby incorporated by reference in this Plan.
8.4. SUSPENSION OF PAYMENTS IN EVENT OF DISPUTE. If the Committee is in
doubt concerning the entitlement of any person to any payment claimed
to be due under the Plan, the Committee may direct the Employer to
suspend any such payment until satisfied as to the entitlement of such
person to such payment. The Committee or the Employer may file or cause
to be filed in any court of competent jurisdiction an appropriate legal
action or process in such form as the Committee or the Employer deems
appropriate, including an interpleader action or an action for
declaratory judgment, for a legal determination of the entitlement of
any person to any payment claimed to be due under the Plan. The
Committee and the Employer shall comply with any final order of the
court in any such suit, subject to appellate review, and the
Participant and Beneficiaries shall be similarly bound thereby.
ARTICLE IX
MISCELLANEOUS
9.1. AMENDMENT AND TERMINATION. The Company may at any time and from time to
time amend, suspend or terminate this Plan with or without the consent
of any Participant or Beneficiary, provided that no such amendment,
suspension or termination shall reduce the balance in any Participant's
Account. Such amendment, suspension or termination may be authorized by
the Company's Board of Directors or by action of such officer or
officers of the Company as the Board of Directors may designate. Upon
the suspension or termination of the Plan, the Company may, in its
discretion, direct early payment of the vested portion of any or all
Accounts.
9.2 NO CONTRACT OF EMPLOYMENT. The establishment of the Plan, any
modification thereof, the creation of one or more Accounts, and/or the
making of any payments under the Plan, shall not give any associate the
right to remain in the service of any Employer, and all Participants
and other associates shall remain subject to discharge to the same
extent as if the Plan had never been adopted.
9.3. TAX EFFECTS. None of the Company, any other Employer, the Committee or
any other person, represents or guarantees that any particular federal,
state or local tax consequences shall occur as a result of any
Participant's participation in this Plan. Each Participant is
encouraged to consult with his or her own advisors regarding the tax
consequences of participation in this Plan.
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9.4. NONALIENATION OF BENEFITS. None of the payments, benefits, or rights of
any Participant or Beneficiary shall be subject to any claim of any
creditor of such Participant or Beneficiary and, to the fullest extent
permitted by law, all such payments, benefits and rights shall be free
from attachment, garnishment or any other legal or equitable process
available to any creditor of such Participant or Beneficiary. No
Participant or Beneficiary shall have the right to alienate, commute,
pledge, encumber or assign any of the benefits or payments which the
Participant or Beneficiary may expect to receive, contingently or
otherwise, under the Plan, except the right of a Participant to
designate a Beneficiary.
9.5. PARTICIPANTS' RIGHTS UNSECURED. The Plan shall at all times be entirely
unfunded and, except as provided in the following paragraph, no
provision of this Plan shall at any time be made with respect to
segregating any assets of the Company or any other Employer for payment
of any benefits hereunder. The right of a Participant or Beneficiary to
receive a distribution hereunder shall at all times be an unsecured
claim against the general assets of the Employers, and neither the
Participant nor any Beneficiary shall have any right in or against any
specific assets of the Employers.
The Company may establish a reserve of assets to provide funds for the
payment of benefits under the Plan. Such reserve may be through a trust
account and such reserve shall, at all times, be subject to the claims
of unsatisfied judgment creditors of the Employers and shall otherwise
be on such terms and conditions as shall prevent taxation to
Participants and Beneficiaries of any amounts held in the reserve or
credited to an account prior to the time payments are made. No
Participant or Beneficiary shall have any ownership rights in or to any
reserve.
9.6. LIMITATION OF LIABILITY. The liability of the Employer and the
Committee under this Plan shall be limited to the obligations expressly
set forth in the Plan, and no term or provision of this Plan may be
construed to impose any further or additional duties, obligations or
costs on the Employer or the Committee not expressly set forth in the
Plan.
9.7. PAYMENTS TO MINORS, ETC. Any amount payable to or for the benefit of a
minor, an incompetent person or any other person incapable of
receipting therefor may be paid to such person's guardian, to any
trustee or guardian holding assets for the benefit of such person, or
to any person providing, or reasonably appearing to provide, for the
care of such person, and such payment shall fully discharge the
Committee and the Employer with respect thereto.
9.8. NOTICES. Notices under the Plan shall be deemed to be sufficiently
given if sent by first class, registered or certified mail addressed
(i) to a Participant or Beneficiary at such person's last known address
as set forth in the books and records of the Employer, or (i) to the
Employer or the Committee at the principal offices of the Company.
9.9. HEADINGS AND CAPTIONS. The headings and captions in the Plan are
provided for convenience only and shall not be employed in the
construction of the Plan.
9.10. ENTIRE AGREEMENT. This Plan and any subsequently adopted amendments
thereto shall constitute the entire agreement or contract between the
Employer and the Participants and Beneficiaries regarding the Plan. No
oral statement regarding the Plan may be relied upon by any Participant
or Beneficiary.
9.11. CORPORATE SUCCESSORS. The Plan shall not be automatically terminated by
a transfer or sale of the assets of the Company or any Employer or by
the merger or consolidation of the Company or any Employer into or with
any other corporation or other entity, but the Plan shall be continued
after such sale, merger or consolidation only if and to the extent that
the transferee, purchaser or successor entity agrees to continue the
Plan. In the event that the Plan is not continued by the transferee,
purchaser or successor entity, then the Plan shall terminate subject to
the provisions of Section 9.1.
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9.12. SEVERABILITY. If any term or provision of this Plan shall be held
invalid or unenforceable by a court of competent jurisdiction, such
invalidity or unenforceability shall not affect the remaining terms and
provisions hereof, and this Plan shall be construed and enforced as if
such provision had not been included.
9.13. THIRD PARTIES. Nothing expressed or implied in this Plan is intended or
may be construed to give any person other than Participants and
Beneficiaries any rights or remedies under the Plan.
9.14. GOVERNING LAW. The laws of the State of Ohio applicable to agreements
to be performed in the State of Ohio shall apply in determining the
construction and validity of the Plan and all rights and obligations
under the Plan, except to the extent such laws are preempted by federal
law.
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IN WITNESS WHEREOF, the Company has caused the First Amended and Restated
Supplemental Retirement and Deferred Compensation Plan to be executed by its
duly authorized officer this 10th day of May, 2000.
TOO, INC.
By:_____________________________________
Name:___________________________________
Title:___________________________________
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