EXHIBIT 10.12
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Adopted 12/20/94
Effective 1/30/95
As Amended Through 1/28/99
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SCHULTZ SAV-O STORES, INC.
1995 EQUITY INCENTIVE PLAN
Section 1. Purpose
The purpose of Schultz Sav-O Stores, Inc. 1995 Equity Incentive Plan (the
"Plan") is to promote the best interests of Schultz Sav-O Stores, Inc. (the
"Company") and its shareholders by providing key employees of the Company and
its Affiliates (as defined below) with an opportunity to acquire a, or increase
their, proprietary interest in the Company. It is intended that the Plan will
promote continuity of management and increased incentive and personal interest
in the welfare of the Company by those key employees who are primarily
responsible for shaping and carrying out the long-range plans of the Company and
securing the Company's continued growth and financial success.
Section 2. Definitions
As used in the Plan, the following terms shall have the respective
meanings set forth below:
(a) "Affiliate" shall mean any entity that, directly or through one or
more intermediaries, is controlled by, controls, or is under common control
with, the Company.
(b) "Award" shall mean any Option, Stock Appreciation Right, Restricted
Stock or Performance Share granted under the Plan.
(c) "Award Agreement" shall mean any written agreement, contract or other
instrument or document evidencing any Award granted under the Plan.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(e) "Commission" shall mean the Securities and Exchange Commission.
(f) "Committee" shall mean the Compensation and Stock Option Committee of
the Board of Directors of the Company (or any other committee thereof designated
by such Board to administer the Plan); provided, however, that the Committee is
composed of not less than two directors, each of whom is a "disinterested
person" within the meaning of Rule 16b-3.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
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(h) "Fair Market Value" shall mean, with respect to any property
(including, without limitation, any Shares or other securities), the fair market
value of such property determined by such methods or procedures as shall be
established from time to time by the Committee.
(i) "Incentive Stock Option" shall mean an option granted under Section
6(a) of the Plan that is intended to meet the requirements of Section 422 of the
Code (or any successor provision thereto).
(j) "Key Employee" shall mean any officer or other key employee of the
Company or of any Affiliate who is responsible for or contributes to the
management, growth or profitability of the business of the Company or any
Affiliate as determined by the Committee in its discretion.
(k) "Non-Qualified Stock Option" shall mean an option granted under
Section 6(a) of the Plan that is not intended to be an Incentive Stock Option.
(l) "Option" shall mean an Incentive Stock Option or a Non-Qualified
Stock Option.
(m) "Participating Key Employee" shall mean a Key Employee designated to
be granted an Award under the Plan.
(n) "Performance Period" shall mean, in relation to Performance Shares,
any period for which a performance goal or goals have been established.
(o) "Performance Share" shall mean any right granted under Section 6(d)
of the Plan that will be paid out as a Share (which, in specified circumstances,
may be a Share of Restricted Stock).
(p) "Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization or
government or political subdivision thereof.
(q) "Released Securities" shall mean Shares of Restricted Stock with
respect to which all applicable restrictions have expired, lapsed or been
waived.
(r) "Restricted Securities" shall mean Awards of Restricted Stock or
other Awards under which issued and outstanding Shares are held subject to
certain restrictions.
(s) "Restricted Stock" shall mean any Share granted under Section 6(c) of
the Plan or, in specified circumstances, a Share paid in connection with a
Performance Share under Section 6(e) of the Plan.
(t) "Rule 16b-3" shall mean Rule 16b-3 as promulgated by the Commission
under the Exchange Act, or any successor rule or regulation thereto.
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(u) "Shares" shall mean shares of common stock of the Company, $0.05 par
value (including the associated Common Stock Purchase Rights), and such other
securities or property as may become subject to Awards pursuant to an adjustment
made under Section 4(b) of the Plan.
(v) "Stock Appreciation Right" shall mean any right granted under Section
6(b) of the Plan.
Section 3. Administration
The Plan shall be administered by the Committee; provided, however, that
if at any time the Committee shall not be in existence, the functions of the
Committee as specified in the Plan shall be exercised by those members of the
Board of Directors of the Company who qualify as "disinterested persons" under
Rule 16b-3. Subject to the terms of the Plan and applicable laws and without
limitation by reason of enumeration, the Committee shall have full discretionary
power and authority to: (i) designate Participating Key Employees; (ii)
determine the type or types of Awards to be granted to each Participating Key
Employee under the Plan; (iii) determine the number of Shares to be covered by
(or with respect to which payments, rights or other matters are to be calculated
in connection with) Awards granted to Participating Key Employees; (iv)
determine the terms and conditions of any Award granted to a Participating Key
Employee; (v) determine whether, to what extent and under what circumstances
Awards granted to Participating Key Employees may be settled or exercised in
cash, Shares, other securities, other Awards or other property, and the method
or methods by which Awards may be settled, exercised, canceled, forfeited or
suspended; (vi) determine whether, to what extent and under what circumstances
cash, Shares, other Awards and other amounts payable with respect to an Award
granted to Participating Key Employees under the Plan shall be deferred either
automatically or at the election of the holder thereof or of the Committee;
(vii) interpret and administer the Plan and any instrument or agreement relating
to, or Award made under, the Plan (including, without limitation, any Award
Agreement); (viii) establish, amend, suspend or waive such rules and regulations
and appoint such agents as it shall deem appropriate for the proper
administration of the Plan; and (ix) make any other determination and take any
other action that the Committee deems necessary or desirable for the
administration of the Plan. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations and other decisions under or with
respect to the Plan or any Award shall be within the sole discretion of the
Committee, may be made at any time or from time to time, and shall be final,
conclusive and binding upon all Persons, including the Company, any Affiliate,
any Participating Key Employee, any holder or beneficiary of any Award, any
shareholder and any employee of the Company or of any Affiliate.
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Section 4. Shares Available for Award
(a) Shares Available. Subject to adjustment as provided in Section 4(b):
(i) Number of Shares Available. The number of Shares with respect to
which Awards may be granted under the Plan shall be 1,250,000, subject to the
limitations set forth in Section 6(c)(i).
(ii) Accounting for Awards. The number of Shares covered by an Award
under the Plan, or to which such Award relates, shall be counted on the date of
grant of such Award against the number of Shares available for granting Awards
under the Plan.
(iii) Sources of Shares Deliverable Under Awards. Any Shares
delivered pursuant to an Award may consist, in whole or in part, of authorized
and unissued Shares or of treasury Shares.
(b) Adjustments. In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash, Shares, other
securities or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Shares or other securities of the Company, issuance of
warrants or other rights to purchase Shares or other securities of the Company,
or other similar corporate transaction or event affects the Shares such that an
adjustment is determined by the Committee to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan, then the Committee may, in such manner as it may
deem equitable, adjust any or all of (i) the number and type of Shares subject
to the Plan and which thereafter may be made the subject of Awards under the
Plan; (ii) the number and type of Shares subject to outstanding Awards; and
(iii) the grant, purchase or exercise price with respect to any Award, or, if
deemed appropriate, make provision for a cash payment to the holder of an
outstanding Award; provided, however, in each case, that with respect to Awards
of Incentive Stock Options no such adjustment shall be authorized to the extent
that such authority would cause the Plan to violate Section 422(b) of the Code
(or any successor provision thereto); and provided further that the number of
Shares subject to any Award payable or denominated in Shares shall always be a
whole number.
Section 5. Eligibility
Any Key Employee, including any executive officer or employee-director of
the Company or of any Affiliate, who is not a member of the Committee shall be
eligible to be designated a Participating Key Employee.
Section 6. Awards
(a) Option Awards. The Committee is hereby authorized to grant Options to
Key Employees with the terms and conditions as set forth below and with such
additional terms and conditions, in either case not inconsistent with the
provisions of the Plan, as the Committee shall determine in its discretion.
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(i) Exercise Price. The exercise price per Share of an Option granted
pursuant to this Section 6(a) shall be determined by the Committee; provided,
however, that such exercise price shall not be less than 100% of the Fair Market
Value of a Share on the date of grant of such Option.
(ii) Option Term. The term of each Option shall be fixed by the
Committee; provided, however, that in no event shall the term of any Option
exceed a period of seven years from the date of its grant.
(iii) Exercisability and Method of Exercise. An Option shall become
exercisable in such manner and within such period or periods and in such
installments or otherwise as shall be determined by the Committee. The Committee
also shall determine the method or methods by which, and the form or forms,
including, without limitation, cash, Shares, other securities, other Awards,
other property or any combination thereof, having a Fair Market Value on the
exercise date equal to the relevant exercise price, in which payment of the
exercise price with respect to any Option may be made or deemed to have been
made.
(iv) Incentive Stock Options. The terms of any Incentive Stock Option
granted under the Plan shall comply in all respects with the provisions of
Section 422 of the Code (or any successor provision thereto) and any regulations
promulgated thereunder. Notwithstanding any provision in the Plan to the
contrary, no Incentive Stock Option may be granted hereunder after the tenth
anniversary of the adoption of the Plan by the Board of Directors of the
Company.
(b) Stock Appreciation Right Awards. The Committee is hereby authorized
to grant Stock Appreciation Rights to Key Employees. Subject to the terms of the
Plan and any applicable Award Agreement, a Stock Appreciation Right granted
under the Plan shall confer on the holder thereof a right to receive, upon
exercise thereof, the excess of (i) the Fair Market Value of one Share on the
date of exercise over (ii) the grant price of the Stock Appreciation Right as
specified by the Committee, which shall not be less than 100% of the Fair Market
Value of one Share on the date of grant of the Stock Appreciation Right. Subject
to the terms of the Plan, the grant price, term, methods of exercise, methods of
settlement (including whether the Participating Key Employee will be paid in
cash, Shares, other securities, other Awards, or other property or any
combination thereof), and any other terms and conditions of any Stock
Appreciation Right shall be as determined by the Committee in its discretion.
The Committee may impose such conditions or restrictions on the exercise of any
Stock Appreciation Right as it may deem appropriate, including, without
limitation, restricting the time of exercise of the Stock Appreciation Right to
specified periods as may be necessary to satisfy the requirements of Rule 16b-3.
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(c) Restricted Stock Awards
(i) Issuance. The Committee is hereby authorized to grant Awards of
Restricted Stock to Key Employees; provided, however, that the aggregate number
of Shares of Restricted Stock granted under the Plan to all Participating Key
Employees as a group shall not exceed 75,000 Shares (such number of Shares
subject to adjustment in accordance with the terms of Section 4(b) hereof) of
the total number of Shares available for Awards under Section 4(a)(i).
(ii) Restrictions. Shares of Restricted Stock granted to
Participating Key Employees shall be subject to such restrictions as the
Committee may impose in its discretion (including, without limitation, any
limitation on the right to vote a Share of Restricted Stock or the right to
receive any dividend or other right or property), which restrictions may lapse
separately or in combination at such time or times, in such installments or
otherwise, as the Committee may deem appropriate in its discretion.
(iii) Registration. Any Restricted Stock granted under the Plan to a
Participating Key Employee may be evidenced in such manner as the Committee may
deem appropriate in its discretion, including, without limitation, book-entry
registration or issuance of a stock certificate or certificates. In the event
any stock certificate is issued in respect of Shares of Restricted Stock granted
under the Plan to a Participating Key Employee, such certificate shall be
registered in the name of the Participating Key Employee and shall bear an
appropriate legend (as determined by the Committee) referring to the terms,
conditions and restrictions applicable to such Restricted Stock.
(iv) Payment of Restricted Stock. At the end of the applicable
restriction period relating to Restricted Stock granted to a Participating Key
Employee, one or more stock certificates for the appropriate number of Shares,
free of restrictions imposed under the Plan, shall be delivered to the
Participating Key Employee or, if the Participating Key Employee received stock
certificates representing the Restricted Stock at the time of grant, the legends
placed on such certificates shall be removed.
(v) Forfeiture. Except as otherwise determined by the Committee in
its discretion, upon termination of employment of a Participating Key Employee
(as determined under criteria established by the Committee in its discretion)
for any reason during the applicable restriction period, all Shares of
Restricted Stock still subject to restriction shall be forfeited by the
Participating Key Employee; provided, however, that the Committee may, when it
finds that a waiver would be in the best interests of the Company, waive in
whole or in part any or all remaining restrictions with respect to Shares of
Restricted Stock held by a Participating Key Employee.
(d) Performance Share Awards
(i) Issuance. The Committee is hereby authorized to grant Awards of
Performance Shares to Key Employees.
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(ii) Performance Goals and Other Terms. The Committee shall determine
in its discretion the Performance Period, the performance goal or goals to be
achieved during any Performance Period, the proportion of payments, if any, to
be made for performance between the minimum and full performance levels, the
restrictions applicable to Shares of Restricted Stock received upon payment of
Performance Shares if Performance Shares are paid in such manner, and any other
terms, conditions and rights relating to a grant of Performance Shares.
Performance goals established by the Committee may be based on one or more
measures such as return on shareholders' equity, earnings or any other standard
or standards deemed relevant by the Committee, measured internally or relative
to other organizations and before or after extraordinary items.
(iii) Rights and Benefits During the Performance Period. The
Committee may provide that, during a Performance Period, a Participating Key
Employee shall be paid cash amounts, with respect to each Performance Share held
by such Participating Key Employee, in the same manner, at the same time, and in
the same amount paid, as a cash dividend on a Share. Participating Key Employees
shall have no voting rights with respect to Performance Shares held by them.
(iv) Adjustments with Respect to Performance Shares. Any other
provision of the Plan to the contrary notwithstanding, the Committee may in its
discretion at any time or from time to time adjust performance goals (up or
down) and minimum or full performance levels (and any intermediate levels and
proportion of payments related thereto), adjust the manner in which performance
goals are measured, or shorten any Performance Period or waive in whole or in
part any or all remaining restrictions with respect to Shares of Restricted
Stock issued in payment of Performance Shares, if the Committee determines that
conditions, including but not limited to, changes in the economy, changes in
competitive conditions, changes in laws or governmental regulations, changes in
generally accepted accounting principles, changes in the Company's accounting
policies, acquisitions or dispositions by the Company or its Affiliates, or the
occurrence of other unusual, unforeseen or extraordinary events, so warrant.
(v) Payment of Performance Shares. As soon as is reasonably
practicable following the end of the applicable Performance Period, one or more
certificates representing the number of Shares equal to the number of
Performance Shares payable shall be registered in the name of and delivered to
the Participating Key Employee; provided, however, that any Shares of Restricted
Stock payable in connection with Performance Shares shall, pending the
expiration, lapse, or waiver of the applicable restrictions, be evidenced in the
manner as set forth in Section 6(c)(iii) hereof.
(e) General
(i) No Consideration for Awards. Awards shall be granted to
Participating Key Employees for no cash consideration unless otherwise
determined by the Committee.
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(ii) Award Agreements. Each Award granted under the Plan shall be
evidenced by an Award Agreement in such form (consistent with the terms of the
Plan) as shall have been approved by the Committee.
(iii) Awards May Be Granted Separately or Together. Awards to
Participating Key Employees under the Plan may be granted either alone or in
addition to, in tandem with, or in substitution for, any other Award or any
award granted under any other plan of the Company or any Affiliate. Awards
granted in addition to, or in tandem with, other Awards, or in addition to, or
in tandem with, awards granted under any other plan of the Company or any
Affiliate, may be granted either at the same time as or at a different time from
the grant of such other Awards or awards.
(iv) Forms of Payment Under Awards. Subject to the terms of the Plan
and of any applicable Award Agreement, payments or transfers to be made by the
Company or an Affiliate upon the grant, exercise or payment of an Award to a
Participating Key Employee may be made in such form or forms as the Committee
shall determine, and may be made in a single payment or transfer, in
installments, or on a deferred basis, in each case in accordance with rules and
procedures established by the Committee in its discretion. Such rules and
procedures may include, without limitation, provisions for the payment or
crediting of interest on installment or deferred payments.
(v) Limits on Transfer of Options. Except as otherwise provided by
the Board of Directors of the Company or the Committee, Awards granted under the
Plan shall not be transferable other than as designated by the Participating Key
Employee by will, or by the laws of descent and distribution. In the event that
the Board of Directors of the Company or the Committee shall permit a transfer
of an Award, any permitted transferee shall have all of the rights of the
Participating Key Employee under the Plan, as if the Participating Key Employee
had retained such Award.
(vi) Term of Awards. Except as otherwise provided in the Plan, the
term of each Award shall be for such period as may be determined by the
Committee.
(vii) Rule 16b-3 Six-Month Limitations. To the extent required in
order to comply with Rule 16b-3 only, any equity security offered pursuant to
the Plan may not be sold for at least six months after acquisition, except in
the case of death or disability, and any derivative security issued pursuant to
the Plan shall not be exercisable for at least six months, except in case of
death or disability of the holder thereof. Terms used in the preceding sentence
shall, for the purposes of such sentence only, have the meanings, if any,
assigned or attributed to them under Rule 16b-3.
(viii) Share Certificates; Representation. In addition to the
restrictions imposed pursuant to Section 6(c) and Section 6(d) hereof, all
certificates for Shares delivered under the Plan pursuant to any Award or the
exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the Plan or the rules,
regulations and other requirements of the Commission, Nasdaq Stock Market or any
stock exchange or other market upon which such Shares are then listed or traded,
and any applicable federal or state securities laws, and the Committee may cause
a legend or legends to
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be put on any such certificates to make appropriate reference to such
restrictions. The Committee may require each Participating Key Employee, or
other Person who acquires Shares under the Plan by means of an Award originally
made to a Participating Key Employee to represent to the Company in writing that
such Participating Key Employee, or other Person is acquiring the Shares without
a view to the distribution thereof.
Section 7. Amendment and Termination of the Plan; Correction of Defects and
Omissions
(a) Amendments to and Termination of the Plan. The Board of Directors of
the Company may at any time amend, alter, suspend, discontinue or terminate the
Plan; provided, however, that shareholder approval of any amendment of the Plan
shall also be obtained if otherwise required by: (i) the rules and/or
regulations promulgated under Section 16 of the Exchange Act (in order for the
Plan to remain qualified under Rule 16b-3); (ii) the Code or any rules
promulgated thereunder (in order to allow for Incentive Stock Options to be
granted under the Plan); or (iii) the quotation or listing requirements of the
Nasdaq National Market or any principal securities exchange or market on which
the Shares are then traded (in order to maintain the quotation or listing of the
Shares thereon). Termination of the Plan shall not affect the rights of
Participating Key Employees with respect to Awards previously granted to them,
and all unexpired Awards shall continue in force and effect after termination of
the Plan except as they may lapse or be terminated by their own terms and
conditions.
(b) Correction of Defects, Omissions and Inconsistencies. The Committee
may in its discretion correct any defect, supply any omission or reconcile any
inconsistency in any Award or Award Agreement in the manner and to the extent it
shall deem desirable to carry the Plan into effect.
Section 8. General Provisions
(a) No Rights to Awards. No Key Employee, Participating Key Employee or
other Person shall have any claim to be granted any Award under the Plan, and
there is no obligation for uniformity of treatment of Key Employees,
Participating Key Employees or holders or beneficiaries of Awards under the
Plan. The terms and conditions of Awards need not be the same with respect to
each Participating Key Employee.
(b) Withholding. No later than the date as of which an amount first
becomes includible in the gross income of a Participating Key Employee for
federal income tax purposes with respect to any Award under the Plan, the
Participating Key Employee shall pay to the Company, or make arrangements
satisfactory to the Company regarding the payment of, any federal, state, local
or foreign taxes of any kind required by law to be withheld with respect to such
amount. Unless otherwise determined by the Committee, withholding obligations
arising with respect to Awards to Participating Key Employees under the Plan may
be settled with Shares previously owned by the Participating Key Employee;
provided, however, that the Participating Key Employee may not settle such
obligations with Shares that are part of, or are received upon exercise of, the
Award that gives rise to the withholding requirement. The obligations of the
Company under the Plan shall be conditional on such payment or arrangements, and
the Company and any Affiliate shall, to the extent permitted by
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law, have the right to deduct any such taxes from any payment otherwise due to
the Participating Key Employee. The Committee may establish such procedures as
it deems appropriate for the settling of withholding obligations with Shares,
including, without limitation, the establishment of such procedures as may be
necessary to satisfy the requirements of Rule 16b-3.
(c) No Limit on Other Compensation Arrangements. Nothing contained in the
Plan shall prevent the Company or any Affiliate from adopting or continuing in
effect other or additional compensation arrangements, and such arrangements may
be either generally applicable or applicable only in specific cases.
(d) Rights and Status of Recipients of Awards. The grant of an Award
shall not be construed as giving a Participating Key Employee the right to be
retained in the employ of the Company or any Affiliate. Further, the Company or
any Affiliate may at any time dismiss a Participating Key Employee from
employment, free from any liability, or any claim under the Plan, unless
otherwise expressly provided in the Plan or in any Award Agreement. Except for
rights accorded under the Plan and under any applicable Award Agreement,
Participating Key Employees shall have no rights as holders of Shares as a
result of the granting of Awards hereunder.
(e) Unfunded Status of the Plan. Unless otherwise determined by the
Committee, the Plan shall be unfunded and shall not create (or be construed to
create) a trust or a separate fund or funds. The Plan shall not establish any
fiduciary relationship between the Company or the Committee and any
Participating Key Employee or other Person. To the extent any Person holds any
right by virtue of a grant under the Plan, such right (unless otherwise
determined by the Committee) shall be no greater than the right of an unsecured
general creditor of the Company.
(f) Governing Law. The validity, construction and effect of the Plan and
any rules and regulations relating to the Plan shall be determined in accordance
with the internal laws of the State of Wisconsin and applicable federal law.
(g) Severability. If any provision of the Plan or any Award Agreement or
any Award is or becomes or is deemed to be invalid, illegal or unenforceable in
any jurisdiction, or as to any Person or Award, or would disqualify the Plan,
any Award Agreement or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be so construed or deemed amended without, in
the determination of the Committee, materially altering the intent of the Plan,
any Award Agreement or the Award, such provision shall be stricken as to such
jurisdiction, Person or Award, and the remainder of the Plan, any such Award
Agreement and any such Award shall remain in full force and effect.
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(h) No Fractional Shares. No fractional Shares or other securities shall
be issued or delivered pursuant to the Plan, any Award Agreement or any Award,
and the Committee shall determine (except as otherwise provided in the Plan)
whether cash, other securities or other property shall be paid or transferred in
lieu of any fractional Shares or other securities, or whether such fractional
Shares or other securities or any rights thereto shall be canceled, terminated
or otherwise eliminated.
(i) Headings. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
Section 9. Effective Date of the Plan
The Plan shall be effective as of January 30, 1995 subject to shareholder
approval of the Plan within 12 months following the date of adoption of the Plan
by the Board of Directors, and all Awards granted under the Plan prior to the
date of shareholder approval shall be subject to such approval and the effective
date of such Award grants shall be deemed to be the date of such shareholder
approval.
Section 10. Term of the Plan
No Award shall be granted under the Plan following the fifth anniversary
of its effective date. However, unless otherwise expressly provided in the Plan
or in an applicable Award Agreement, any Award theretofore granted may extend
beyond such date and, to the extent set forth in the Plan, the authority of the
Committee to amend, alter, adjust, suspend, discontinue or terminate any such
Award, or to waive any conditions or restrictions with respect to any such
Award, and the authority of the Board of Directors of the Company to amend the
Plan, shall extend beyond such date.
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