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AMENDED AND RESTATED
SCHOOL SPECIALTY, INC.
1998 STOCK INCENTIVE PLAN
PURPOSE SCHOOL SPECIALTY, INC., a Delaware corporation (the "Company"),
wishes to recruit, reward, and retain employees, officers and
outside directors. To further these objectives, the Company
hereby sets forth the School Specialty, Inc. 1998 Stock
Incentive Plan (the "Plan") to provide options ("Options") or
direct grants ("Stock Grants" and, together with the Options,
"Awards") to employees, officers and outside directors with
respect to shares of the Company's common stock (the "Common
Stock"). The Plan was originally effective as of the effective
date (the "Effective Date") of the Company's registration under
Section 12 of the Securities Exchange Act of 1934 (the "Exchange
Act") with respect to its initial public offering ("IPO"), and
this amendment and restatement is effective as of November 30,
1998.
PARTICIPANTS All Employees of the Company and any Eligible Subsidiaries are
eligible for Options and Stock Grants under this Plan, as are
the officers and the directors of the Company and the Eligible
Subsidiaries who are not employees ("Eligible Officers and
Eligible Directors"). Eligible employees, officers and directors
become "optionees" when the Administrator grants them an option
under this Plan or "recipients" when they receive a direct grant
of Common Stock. (Optionees and recipients are referred to
collectively as "participants." The term participant also
includes, where appropriate, a person authorized to exercise an
Award in place of the original optionee.) The Administrator may
also grant Options or make Stock Grants to consultants and other
service providers.
Employee means any person employed as a common law employee of
the Company or an Eligible Subsidiary.
ADMINISTRATOR The Administrator will be the Compensation Committee of the
Board of Directors of the Company (the "Compensation
Committee"), unless the Board specifies another committee. The
Board may also act under the Plan as though it were the
Compensation Committee. The Board of Directors of U.S. Office
Products Company ("U.S. Office Products"), directly or through a
committee of directors, had the authority to act as
Administrator before U.S. Office Products distributed the Common
Stock to U.S. Office Products' stockholders (the
"Distribution").
The Administrator is responsible for the general operation and
administration of the Plan and for carrying out its provisions
and has full discretion in interpreting administering the
provisions of the Plan. Subject to the express provisions of the
Plan, the Administrator may exercise such
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powers and authority of the Board as the Administrator may find
necessary or appropriate to carry out its functions. The
Administrator may delegate its functions (other than those
described in the GRANTING OF AWARDS section) to officers or
other employees of the Company.
The Administrator's powers will include, but not be limited to,
the power to amend, waive, or extend any provision or limitation
of any Award. The Administrator may act through meetings of a
majority of its members or by unanimous consent.
GRANTING OF Subject to the terms of the Plan, the Administrator will, in its
AWARDS sole discretion, determine:
the participants who receive Awards,
the terms of such Awards,
the schedule for exercisability or nonforfeitability
(including any requirements that the participant or the
Company satisfy performance criteria),
the time and conditions for expiation of the Award, and
the form of payment due upon exercise, if any.
The Administrator's determinations under the Plan need not be
uniform and need not consider whether possible participants are
similarly situated.
Options granted to employees may be nonqualified stock options
("NQSOs") or "incentive stock options" ("ISOs") within the
meaning of Section 422 of the Internal Revenue Code of 1986, as
amended from time to time (the "Code"), or the corresponding
provision of any subsequently enacted tax statute. Options
granted to Eligible Officers and Eligible Directors, including
Formula Options, must be NQSOs. The Administrator will not grant
ISOs unless the stockholders either have already approved the
granting of ISOs or give such approval within 12 months after
the grant.
The Administrator may impose such conditions on or charge such
price for the Stock Grants as it deems appropriate.
SUBSTITUTIONS The Administrator may also grant Awards in substitution for
options or other equity interests held by individuals (i) as a
result of their employment by or services to U.S. Office
Products before the Distribution or (ii) who become Employees of
the Company or of an Eligible
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Subsidiary as a result of the Company's acquiring or merging
with the individual's employer or acquiring its assets. If
necessary to conform the Awards to the interests for which they
are substitutes, the Administrator may grant substitute Awards
under terms and conditions that vary from those the Plan
otherwise requires. Awards in substitution for U.S. Office
Products' options in connection with the Distribution will
retain their pre-Distribution exercise schedule and terms
(including Change of Control provisions) and expiration date.
DIRECTOR Each Eligible Director will receive a formula stock option
FORMULA ("Formula Option") as of the Effective Date with respect to
OPTIONS 15,000 shares of Common Stock, as will each Eligible Director
later appointed or elected to the Board (with the grant made as
of the date of his first election or appointment). Each Eligible
Director serving on the Board at each annual meeting of the
Company's shareholders (beginning with the meeting at least six
months after the Effective Date of the IPO) will receive a
Formula Option as of that meeting with respect to 5,000 shares
of Common Stock. The Exercise Price for Formula Options will be
the Fair Market Value on the Date of Grant.
EXERCISE Unless the Administrator specifies otherwise, each Formula
SCHEDULE Option will become exercisable as to 20% of the covered shares
on the first anniversary of its Date of Grant, an additional 30%
on the second anniversary, and the remaining 50% on or after the
third anniversary. A Formula Option will become exercisable in
its entirety upon the director's death, disability, or
attainment of age 70. Options will be forfeited to the extent
they are not then exercisable if a director resigns or fails to
be reelected as a director.
DATE OF GRANT The Date of Grant will be the date as of which this Plan or the
Administrator grants an Award to a participant, as specified in
the Plan or in the Administrator's minutes.
EXERCISE PRICE The Exercise Price is the value of the consideration that a
participant must provide in exchange for one share of Common
Stock. The Administrator will determine the Exercise Price under
each Award and may set the Exercise Price without regard to the
Exercise Price of any other Awards granted at the same or any
other time. The Company may use the consideration it receives
from the participant for general corporate purposes.
The Exercise Price per share for NQSOs may not be less than 100%
of the Fair Market Value of a share on the Date of Grant. If an
Option is intended to be an ISO, the Exercise Price per share
may not be less than 100% of the Fair Market Value (on the Date
of Grant) of a share of
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Common Stock covered by the Option; provided, however, that if
the Administrator decides to grant an ISO to someone covered by
Sections 422(b)(6) and 424(d) (as a more-than-10%-stock-owner),
the Exercise Price of the Option must be at least 110% of the
Fair Market Value (on the Date of Grant).
The Administrator may satisfy any state law requirements
regarding adequate consideration for Stock Grants by (i) issuing
Common Stock held as treasury stock or (ii) charging the
recipients at least the par value for the shares covered by the
Stock Grant. The Administrator may designate that a recipient
may satisfy (ii) either by direct payments or by the
Administrator's withholding from other payments due to the
recipient.
FAIR MARKET Fair Market Value of a share of Common Stock for purposes of the
VALUE Plan will be determined as follows:
If the Common Stock trades on a national securities
exchange, the closing sale price on that date;
If the Common Stock does not trade on any such exchange,
the closing sale price as reported by the National
Association of Securities Dealers, Inc. Automated
Quotation System ("Nasdaq") for such date;
If no such closing sale price information is available,
the average of the closing bid and asked prices that
Nasdaq reports for such date; or
If there are no such closing bid and asked prices, the
average of the closing bid and asked prices as reported
by any other commercial service for such date.
For any date that is not a trading day, the Fair Market Value of
a share of Common Stock for such date shall be determined by
using the closing sale price or the average of the closing bid
and asked prices, as appropriate, for the immediately preceding
trading day.
The Fair Market Value will be deemed equal to the IPO price for
any Options granted as of the date on which the IPO's
underwriters price the IPO or granted on the following day
before trading opens in the Common Stock.
EXERCISABILITY The Administrator will determine the times and conditions for
exercise of or purchase under each Award but may not extend the
period for exercise
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beyond the tenth anniversary of its Date of Grant (or five years
for ISOs granted to 10% owners covered by Code Sections
422(b)(6) and 424(d)).
Awards will become exercisable at such times and in such manner
as the Administrator determines and the Award Agreement, if any,
indicates; provided, however, that the Administrator may, on
such terms and conditions as it determines appropriate,
accelerate the time at which the participant may exercise any
portion of an Award or at which restrictions on Stock Grants
lapse. For Stock Grants, "exercise" refers to acceptance of the
Award or lapse of restrictions, as appropriate in context.
If the Administrator does not specify otherwise, Options will
become exercisable and restrictions on Stock Grants will lapse
as to one-fourth of the covered shares on each of the first four
anniversaries of the Date of Grant.
No portion of an Award that is unexercisable at a participant's
termination of employment will thereafter become exercisable,
unless the Award Agreement provides otherwise, either initially
or by amendment.
CHANGE OF Upon a Change of Control (as defined below), all Options held by
CONTROL current Employees and directors will become fully exercisable
and all restrictions on Stock Grants will lapse. A Change of
Control for this purpose means the occurrence, after the
Company's IPO, of any one or more of the following events:
a person, entity, or group (other than the Company, any
Company subsidiary, any Company benefit plan, or any
underwriter temporarily holding securities for an
offering of such securities) acquires ownership of more
than 50% of the undiluted total voting power of the
Company's then-outstanding securities eligible to vote
to elect members of the Board ("Company Voting
Securities");
consummation of a merger or consolidation of the Company
into any other entity--unless the holders of the Company
Voting Securities outstanding immediately before such
consummation, together with any trustee or other
fiduciary holding securities under a Company benefit
plan, hold securities that represent immediately after
such merger or consolidation at least 50% of the
combined voting power of the then outstanding voting
securities of either the Company or the other surviving
entity or its parent; or
the stockholders of the Company approve (i) a plan of
complete liquidation or dissolution of the Company or
(ii) an agreement for
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the Company's sale or disposition of all or
substantially all the Company's assets, and such
liquidation, dissolution, sale, or disposition is
consummated.
Even if other tests are met, a Change of Control has not
occurred under any circumstance in which the Company
files for bankruptcy protection or is reorganized
following a bankruptcy filing.
The ADJUSTMENT UPON CHANGES IN CAPITAL STOCK provisions will
also apply if the Change of Control is a SUBSTANTIAL CORPORATE
CHANGE (as defined in those provisions).
LIMITATION An Option granted to an employee will be an ISO only to the
ON ISOs extent that the aggregate Fair Market Value (determined at the
Date of Grant) of the stock with respect to which ISOs are
exercisable for the first time by the optionee during any
calendar year (under the Plan and all other plans of the Company
and its subsidiary corporations, within the meaning of Code
Section 422(d)), does not exceed $100,000. This limitation
applies to Options in the order in which such Options were
granted. If, by design or operation, the Option exceeds this
limit, the excess will be treated as an NQSO.
METHOD OF To exercise any exercisable portion of an Award, the participant
EXERCISE must:
Deliver a written notice of exercise to the Assistant
Secretary of the Company (or to whomever the
Administrator designates), in a form complying with any
rules the Administrator may issue, signed by the
participant, and specifying the number of shares of
Common Stock underlying the portion of the Award the
participant is exercising;
Pay the full Exercise Price, if any, by cashier's or
certified check for the shares of Common Stock with
respect to which the Award is being exercised, unless
the Administrator consents to another form of payment
(which could include the use of Common Stock); and
Deliver to the Administrator such representations and
documents as the Administrator, in its sole discretion,
may consider necessary or advisable.
Payment in full of the Exercise Price need not accompany the
written notice of exercise provided the notice directs that the
stock certificates for the shares issued upon the exercise be
delivered to a licensed broker acceptable to the Company as the
agent for the individual exercising the
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option and at the time the stock certificates are delivered to
the broker, the broker will tender to the Company cash or cash
equivalents acceptable to the Company and equal to the Exercise
Price.
If the Administrator agrees to allow an optionee to pay through
tendering Common Stock to the Company, the individual can only
tender stock he has held for at least six months at the time of
surrender. Shares of stock offered as payment will be valued,
for purposes of determining the extent to which the participant
has paid the Exercise Price, at their Fair Market Value on the
date of exercise. The Administrator may also, in its discretion,
accept attestation of ownership of Common Stock and issue a net
number of shares upon Option exercise.
AWARD No one may exercise an Award more than ten years after its Date
EXPIRATION of Grant (or five years, for an ISO granted to a more-than-10%
shareholder). Unless the Award Agreement provides otherwise,
either initially or by amendment, no one may exercise an Award
after the first to occur of:
EMPLOYMENT The 90th day after the date of termination of employment (other
TERMINATION than for death or Disability), where termination of employment
means the time when the employer-employee or other service
providing relationship between the employee and the Company ends
for any reason, including retirement. Unless the Award Agreement
provides otherwise, termination of employment does not include
instances in which the Company immediately rehires a common law
employee as an independent contractor. The Administrator, in its
sole discretion, will determine all questions of whether
particular terminations or leaves of absence are terminations of
employment;
DlSABILITY For disability, the earlier of (i) the first anniversary of the
participant's termination of employment for disability and (ii)
30 days after the participant no longer has a disability, where
"disability" means the inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a
continuous period of not less than twelve months; or
DEATH The date 24 months after the participant's death.
If exercise is permitted after termination of employment, the
Award will nevertheless expire as of the date that the former
service provider violates any covenant not to compete in effect
between the Company and the former employee. In addition, an
optionee who exercises an Option more than 90 days after
termination of employment with the Company and/or the Eligible
Subsidiaries will only receive ISO treatment to the extent
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permitted by law, and becoming or remaining an employee of
another related company (that is not an Eligible Subsidiary) or
an independent contractor to the Company will not prevent loss
of ISO status because of the formal termination of employment.
Nothing in this Plan extends the term of an Award beyond the
tenth anniversary of its Date of Grant, nor does anything in
this AWARD EXPIRATION section make an Award exercisable that has
not otherwise become exercisable.
AWARD Award Agreements will set forth the terms of each Award and will
AGREEMENT include such terms and conditions, consistent with the Plan, as
the Administrator may determine are necessary or advisable. To
the extent the agreement is inconsistent with the Plan, the Plan
will govern. The Award Agreements may contain special rules. The
Administrator may, but is not required to, issue agreements for
Stock Grants.
STOCK SUBJECT Except as adjusted below under CORPORATE CHANGES, the aggregate
TO PLAN number of shares of Common Stock that may be issued under the
Awards (whether ISOs, NQSOs, or Stock Grants) may not exceed 20%
percent of the total number of shares of Common Stock
outstanding, determined immediately after the grant of the
Award;
the maximum number of shares that may be subject to ISOs
may not exceed 600,000; and
the maximum number of shares that may be granted under
Awards for a single individual in a calendar year may
not exceed 1,200,000. (The individual maximum applies
only to Awards first made under this Plan and not to
Awards made in substitution of a prior employer's
options or other incentives, except as Code Section
162(m) otherwise requires.)
The Common Stock will come from either authorized but unissued
shares or from previously issued shares that the Company
reacquires, including shares it purchases on the open market. If
any Award expires, is canceled, or terminates for any other
reason, the shares of Common Stock available under that Award
will again be available for the granting of new Awards (but will
be counted against that calendar year's limit for a given
individual).
No adjustment will be made for a dividend or other right (except
a stock dividend) for which the record date precedes the date of
exercise.
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The participant will have no rights of a stockholder with
respect to the shares of stock subject to an Award except to the
extent that the Company has issued certificates for, or
otherwise confirmed ownership of, such shares upon the exercise
of the Award.
The Company will not issue fractional shares pursuant to the
exercise of an Award, but the Administrator may, in its
discretion, direct the Company to make a cash payment in lieu of
fractional shares.
PERSON WHO During the participant's lifetime, only the participant or his
MAY EXERCISE duly appointed guardian or personal representative may exercise
the Awards. After his death, his personal representative or any
other person authorized under a will or under the laws of
descent and distribution may exercise any then exercisable
portion of an Award. If someone other than the original
recipient seeks to exercise any portion of an Award, the
Administrator may request such proof as it may consider
necessary or appropriate of the person's right to exercise the
Award.
ADJUSTMENTS Subject to any required action by the Company (which it shall
UPON CHANGES IN promptly take) or its stockholders, and subject to the
CAPITAL STOCK provisions of applicable corporate law, if, after the Date of
Grant of an Award, the outstanding shares of Common Stock
increase or decrease or change into or are exchanged for a
different number or kind of security because of any
recapitalization, reclassification, stock split, reverse stock
split, combination of shares, exchange of shares, stock
dividend, or other distribution payable in capital stock, or
some other increase or decrease in such Common Stock
occurs without the Company's receiving consideration.
The Administrator may make a proportionate and appropriate
adjustment in the number of shares of Common Stock underlying
each Award, so that the proportionate interest of the
participant immediately following such event will, to the extent
practicable, be the same as immediately before such event. (This
adjustment does not apply to Common Stock that the optionee has
already purchased nor to Stock Grants that are already
nonforfeitable, except to the extent of similar treatment for
most stockholders.) Unless the Administrator determines another
method would be appropriate, any such adjustment to an Award
will not change the total price with respect to shares of Common
Stock underlying the unexercised portion of the Award but will
include a corresponding proportionate adjustment in the Award's
Exercise Price. The Administrator will make a
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commensurate change to the maximum number and kind of shares
provided in the STOCK SUBJECT TO PLAN section.
Any issue by the Company of any class of preferred stock, or
securities convertible into shares of common or preferred stock
of any class, will not affect, and no adjustment by reason
thereof will be made with respect to, the number of shares of
Common Stock subject to any Award or the Exercise Price except
as this ADJUSTMENTS section specifically provides. The grant of
an Award under the Plan will not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure,
or to merge or to consolidate, or to dissolve, liquidate, sell,
or transfer all or any part of its business or assets.
SUBSTANTIAL Upon a Substantial Corporate Change, the Plan and any
CORPORATE unexercised CORPORATE Awards will terminate unless provision is
CHANGE made in writing in connection with such transaction for the
assumption or continuation of outstanding Awards, or the
substitution for such options or grants of any options or grants
covering the stock or securities of a successor employer
corporation, or a parent or subsidiary of such successor, with
appropriate adjustments as to the number and kind of shares of
stock and prices, in which event the Awards will continue in the
manner and under the terms so provided.
Unless the Board determines otherwise, if an Award would
otherwise terminate under the preceding sentence, participants
who are then employees, officers or directors of the Company
will have the right, at such time before the consummation of the
transaction causing such termination as the Board reasonably
designates, upon such reasonable notice as determined by the
Board, to exercise any unexercised portions of the Award,
whether or not they had previously become exercisable. However,
unless the Board determines otherwise, the acceleration will not
occur if it would render unavailable "pooling of interest"
accounting for any reorganization, merger, or consolidation of
the Company.
A Substantial Corporate Change means:
the dissolution or liquidation of the Company,
merger, consolidation, or reorganization of the Company
with one or more corporations in which the Company is
not the surviving corporation,
the sale of substantially all of the assets of the
Company to another corporation, or
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any transaction (including a merger or reorganization in
which the Company survives) approved by the Board that
results in any person or entity (other than any
affiliate of the Company as defined in Rule 144(a)(1)
under the Securities Act, any Company Subsidiary, any
Company benefit plan, or any underwriter temporarily
holding securities for an offering of such securities)
owning 100% of the combined voting power of all classes
of stock of the Company.
SUBSIDIARY Employees of Company Subsidiaries will be entitled to
EMPLOYEES participate in the Plan, except as otherwise designated by the
Board of Directors or the Committee.
Eligible Subsidiary means each of the Company's Subsidiaries,
except as the Board otherwise specifies. For ISO grants,
Subsidiary means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at
the time an ISO is granted to a Participant under the Plan, each
corporation (other than the last corporation in the unbroken
chain) owns stock possessing 50% or more of the total combined
voting power of all classes of stock in another corporation in
such chain. For ISO purposes, Subsidiary also includes a
single-member limited liability company included within the
chain described in the preceding sentence. For NQSOs, the Board
or the Administrator can use a different definition of
Subsidiary in its discretion.
LEGAL The Company will not issue any shares of Common Stock under an
COMPLIANCE Award until all applicable requirements imposed by Federal and
state securities and other laws, rules, and regulations, and by
any applicable regulatory agencies or stock exchanges, have been
fully met. To that end, the Company may require the participant
to take any reasonable action to comply with such requirements
before issuing such shares. No provision in the Plan or action
taken under it authorizes any action that is otherwise
prohibited by Federal or state laws.
The Plan is intended to conform to the extent necessary with all
provisions of the Securities Act of 1933 ("Securities act") and
the Securities Exchange Act of 1934 and all regulations and
rules the Securities and Exchange Commission issues under those
laws. Notwithstanding anything in the Plan to the contrary, the
Administrator must administer the Plan, and Awards may be
granted and exercised, only in a way that conforms to such laws,
rules, and regulations. To the extent permitted by applicable
law, the Plan and any Awards will be deemed amended to the
extent necessary to conform to such laws, rules, and
regulations.
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PURCHASE FOR Unless a registration statement under the Securities Act covers
INVESTMENT the shares of Common Stock a participant receives upon exercise
AND OTHER of his Award, the Administrator may require, at the time of such
RESTRICTIONS excercise of receipt of a grant, that the participant agree in
writing to acquire such shares for investment and not for public
resale or distribution, unless and until the shares subject to
the Award are registered under the Securities Act. Unless the
shares are registered under the Securities Act, the participant
must acknowledge:
that the shares purchased on exercise of the Award are
not so registered,
that the participant may not sell or otherwise transfer
the shares unless:
the shares have been registered under the
Securities Act in connection with the sale or
transfer thereof, or
counsel satisfactory to the Company has issued an
opinion satisfactory to the Company that the sale
or other transfer of such shares is exempt from
registration under the Securities Act, and
such sale or transfer complies with all other
applicable laws, rules, and regulations, including
all applicable Federal and state securities laws,
rules, and regulations.
Additionally, the Common Stock, when issued upon the exercise of
an Award, will be subject to any other transfer restrictions,
rights of first refusal, and rights of repurchase set forth in
or incorporated by reference into other applicable documents,
including the Company's articles or certificate of
incorporation, by-laws, or generally applicable stockholders'
agreements.
The Administrator may, in its sole discretion, take whatever
additional actions it deems appropriate to comply with such
restrictions and applicable laws, including placing legends on
certificates and issuing stop-transfer orders to transfer agents
and registrars.
TAX The participant must satisfy all applicable Federal, state, and
WITHHOLDING local income and employment tax withholding requirements before
the Company will deliver stock certificates upon the exercise of
an Award. The Company may decide to satisfy the withholding
obligations through additional withholding on salary or wages.
If the Company does not or cannot withhold from other
compensation, the participant must pay the Company,
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with a cashier's check or certified check, the full amounts
required by withholding. Payment of withholding obligations is
due before the Company issues shares with respect to the Award.
If the Administrator so determines, the participant may instead
satisfy the withholding obligations by directing the Company to
retain shares from the Award exercise, by tendering previously
owned shares, or by attesting to his ownership of shares (with
the distribution of net shares).
TRANSFERS, Unless the Administrator otherwise approves in advance in
ASSIGNMENTS, writing for estate planning or other purposes, an Award may not
AND PLEDGES be assigned, pledged, or otherwise transferred in any way,
whether by operation of law or otherwise or through any legal or
equitable proceedings (including bankruptcy), by the participant
to any person, except by will or by operation of applicable laws
of descent and distribution. If Rule 16b-3 then applies to an
Award, the participant may not transfer or pledge shares of
Common Stock acquired under a Stock Grant or upon exercise of an
Option until at least six months have elapsed from (but
excluding) the Date of Grant, unless the Administrator approves
otherwise in advance in writing. The Administrator may, in its
discretion, expressly provide that a participant may transfer
his Award without receiving consideration to (i) members of his
immediate family (children, grandchildren, or spouse); (ii)
trusts for the benefit of such family members; or (iii)
partnerships where the only partners are such family members.
AMENDMENT OR The Board may amend, suspend, or terminate the Plan at any time,
TERMINATION without the consent of the participants or their beneficiaries;
OF PLAN AND provided however, that no amendment will deprive any participant
OPTIONS or beneficiary of any previously declared Award. Except as
required by law or by the CORPORATE CHANGES section, the
Administrator may not, without the participant's or
beneficiary's consent, modify the terms and conditions of an
Award so as to adversely affect the participant. No amendment,
suspension, or termination of the Plan will, without the
participant's or beneficiary's consent, terminate or adversely
affect any right or obligations under any outstanding Awards.
PRIVILEGES No participant and no beneficiary or other person claiming under
OF STOCK or through such participant will have any right, title, or
OWNERSHIP interest in or to any shares of Common Stock allocated or
reserved under the Plan or subject to any Award except as to
such shares of Common Stock if any, already issued to such
participant.
EFFECT ON Whether exercising or receiving an Award causes the participant
OTHER PLANS to accrue or receive additional benefits under any pension or
other plan is governed solely by the terms of such other plan.
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LIMITATIONS Notwithstanding any other provisions of the Plan, no individual
ON LIABILITY acting as a director, employee, or agent of the Company shall be
liable to any participant, former participant, spouse,
beneficiary, or any other person for any claim, loss, liability,
or expense incurred in connection with the Plan, nor shall such
individual be personally liable because of any contract or other
instrument he executes in such other capacity. The Company will
indemnify and hold harmless each director, employee, or agent of
the Company to whom any duty or power relating to the
administration or interpretation of the Plan has been or will be
delegated, against any cost or expense (including attorneys'
fees) or liability (including any sum paid in settlement of a
claim with the Board's approval) arising out of any act or
omission to act concerning this Plan unless arising out of such
person's own fraud or bad faith.
NO EMPLOYMENT Nothing contained in this Plan constitutes an employment
CONTRACT contract between the Company and the participants. The Plan does
not give any participant any right to be retained in the
Company's employ, nor does it enlarge or diminish the Company's
right to end the participant's employment.
APPLICABLE The laws of the State of Delaware (other than its choice of law
LAW provisions) govern this Plan and its interpretation.
DURATION Unless the Board extends the Plan's term, the Administrator may
OF PLAN not grant Awards after June 8, 2008. The Plan will then
terminate but will continue to govern unexercised and unexpired
Awards.
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